Vincent Gerard Tecchio v. United States of America

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-2532
________________
VINCENT GERARD TECCHIO,
Appellant
v.
UNITED STATES OF AMERICA;
LINDA MEOLA; MRS. E. YOUNG;
MR. RODRIGUES;
ANNETTE BRINKMEIER;
JOHN/JANE DOES NUMBERS 1-10
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 03-cv-01529)
District Judge: Honorable Stanley R. Chesler
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
AUGUST 8, 2005
Before: ROTH, MCKEE AND ALDISERT, Circuit Judges.
(Filed November 3, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Vincent Gerard Tecchio appeals from the order of the District Court granting the

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Tecchio’s original complaint was filed in April 2003; he amended the complaint1
once as of right, prior to the filing of a responsive pleading. Shortly thereafter, the United
States filed a motion to dismiss, which the District Court granted without prejudice to
Tecchio’s filing a second amended complaint. Tecchio filed the second amended
complaint in October 2003.
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Defendants’ motion to dismiss and denying his motion for summary judgment. He also
appeals from the denial of several post-judgment motions. For the reasons discussed
below, we will affirm.
Tecchio’s second amended complaint alleges that several Internal Revenue1
Service (“IRS”) employees exceeded their authority when they created a substitute 1040
tax return and then demanded payment for tax liability based thereon. Tecchio claims the
IRS and its employees violated his Constitutional rights to due process, equal protection,
and privacy and that he suffered emotional distress. He seeks to prohibit the IRS from
using the “created records;” he also requests damages, including punitive damages.
The Defendants filed a motion to dismiss, which was granted by order entered on
January 26, 2004. On February 5, 2004, Tecchio filed a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e). Shortly thereafter, he filed another post-
judgment motion citing newly discovered evidence, which the District Court properly
treated as filed pursuant to Fed. R. Civ. P. 60(b). Both motions were denied. Tecchio
filed two motions seeking to alter or amend those orders; both motions were denied.
Tecchio then filed this appeal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We can affirm “a

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Tecchio’s first post-judgment motion tolled the time to file a notice of appeal,2
because the motion was filed within the 10-day period prescribed by Rule 59(e). See Fed.
R. App. P. 4(a)(4)(A)(iv).
Tecchio does not allege that these exceptions apply.3
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result reached by the district court on different reasons, as long as the record supports the
judgment.” Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983)
(citations omitted).
We first review the District Court’s order granting the Defendants’ motion to
dismiss. See Fed. R. App. P. 4(a)(4)(A). An order granting a motion to dismiss is2
subject to plenary review. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). We will
affirm a dismissal for failure to state a claim if we can “‘say with assurance that under the
allegations of the pro se complaint, which we hold to less stringent standards than formal
pleadings drafted by lawyers, it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.’” McDowell v. Del.
State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519,
520-21 (1972)).
Tecchio is seeking to enjoin the United States from using a substitute 1040 return
to impose tax liability. The Anti-Injunction Act, 26 U.S.C. § 7421(a), states that with
limited exceptions, “no suit for the purpose of restraining the assessment or collection of3
any tax shall be maintained in any court by any person, whether or not such person is the
person against whom such tax was assessed.” The purpose of the Act is to permit the

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government to assess and collect taxes it determines to be owed, without judicial
intervention. See J.L. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7
(1962). Section 7421 applies not only the assessment and collection of the actual tax, but
to activities relating to the assessment or collection of taxes. See Linn v. Chivatero, 714
F.2d 1278, 1282 (5th Cir. 1983). Tecchio claims that § 7421 does not apply because he
was not seeking relief based on the tax assessment but on the use of a substitute return
that was created without authorization. This, however, is a distinction without a
difference. The use of the “created” return directly relates to the tax assessment and is
certainly an activity that resulted in the imposition of the tax liability.
Tecchio also seeks to recover damages pursuant to 26 U.S.C. § 7433. He fails to
allege any conduct that falls within § 7433(a); the Defendants were statutorily authorized,
pursuant to 26 U.S.C. § 6020(b), to prepare a substitute return. Furthermore, § 7433(d)
requires the taxpayer to exhaust administrative remedies before a judgment for damages
can be awarded; Tecchio failed to provide any evidence that he exhausted these remedies.
We review an order denying a motion to alter or amend a judgment filed pursuant
to Fed. R. Civ. P. 59(e) for abuse of discretion. Adams v. Gould Inc., 739 F.2d 858, 864
(3d Cir. 1984). The denial of a Rule 60(b) motion also is reviewed for abuse of
discretion. Reform Party of Allegheny County v. Allegheny County Dept. of Elections,
174 F.3d 305, 311 (3d Cir. 1999).
Upon careful review of the record, we have concluded that the District Court did

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Tecchio filed four post-judgment motions in this matter. The first motion, filed on4
February 5, 2004, was timely filed pursuant to Rule 59(e) and tolled the time to appeal the
final order. The second, filed on March 10, 2004, was properly treated as filed pursuant
to Rule 60(b). The third, filed on April 2, 2004, sought reconsideration of the order that
denied the first motion; although the motion did not toll the time to appeal that order, see
Turner v. Evers, 726 F.2d 112, 114 (3d Cir. 1984), the notice of appeal nevertheless was
timely as to the order denying relief under Rule 59(e) because it was filed within sixty
days after entry of that order. The fourth, filed on April 8, 2004, was a timely motion to
alter or amend the order that denied Rule 60(b) relief.
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not abuse its discretion in denying Tecchio’s post-judgment motions. Tecchio failed to4
provide the District Court any basis for granting relief under the Rules of Civil Procedure.
For the foregoing reasons, we will affirm the District Court’s orders granting the
Defendants’ motion to dismiss and denying Tecchio’s motions for relief pursuant to Rules
59(e) and 60(b).

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