Opinion
Civil Action No. 3:01-CV-2602-G
February 28, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendants, the United States of America and Paul O'Neill, Secretary Department of Treasury (the "defendants"), to dismiss the claims of the plaintiff John A. Roberts ("Roberts") on jurisdictional grounds. For the following reasons, the motion is granted.
I. BACKGROUND
Roberts brought this action seeking a refund of federal income tax in an unspecified amount for his 1981, 1982, 1986, 1987 and 1988 taxyears. Complaint/Jury Trial Demand ("Complaint") at 1; Memorandum in Support of Motion to Dismiss ("Motion to Dismiss") at 1. According to the complaint, the events leading up to the present dispute are as follows.
On October 8, 1991, Roberts went into the Inglewood, California office of the Internal Revenue Service ("IRS") to execute an agreement to pay outstanding taxes owed by him in installments. Complaint at 2. Roberts claims he was told by an IRS employee that, in order to obtain the installment agreement, he had to sign a tax collection waiver form. Id. at 3. Roberts asserts that he completed the necessary paperwork, but that he never received the installment agreement. Id. at 4. Allegedly, Roberts did receive copies of the two tax collection waiver forms, covering tax years 1981, 1982, 1986, 1987 and 1988. Id.
On July 13, 1992, Roberts went to the Shreveport office of the IRS to clear up the confusion regarding the tax collection waiver forms he had received from the IRS during the previous year. Id. at 5. At that time, Roberts claims, the IRS told him that an installment agreement had not been issued. Id. Although he was subsequently given an installment agreement, Robert contends the IRS failed to void the previous tax collection waivers. Id. Approximately seven years later, on Feb. 6, 1999, Roberts received a letter from the Department of the Treasury which stated, "We previously informed you that we may have made a mistake in handling your installment agreement. We have determined that your installment agreement was handled properly." Id.
Roberts filed this case on February 5, 2001 in the United States District Court for the Western District of Louisiana. In his complaint, Roberts asserted causes of action for lack of agreement with respect to waiver and lack of consideration. Id. at 6. On December 4, 2001, the case was transferred to this court pursuant to 28 U.S.C. § 1406. See United States of America's Motion Re-urging Its Motion To Dismiss at 3. The defendants now seek dismissal of this case pursuant to FED. R. CIV. P. 12(b)(1), 12(b)(2), and 12(b)(3), on the basis that Roberts has failed to plead the statutory requisites to invoke this court's subject matter jurisdiction and that the Secretary is an improper party. Motion to Dismiss at 1.
II. ANALYSIS
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 377 (1994); Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 374 (1978). A federal court may exercise jurisdiction over cases only as expressly provided by the Constitution and laws of the United States. See U.S. Const. art. III §§ 1-2; see also Kokkonen, 511 U.S. at 377 (citations omitted). Federal law gives the federal district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
A party attempting to invoke federal court jurisdiction bears the burden of establishing that jurisdiction. Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S. 811 (1994). Dismissal for lack of subject matter jurisdiction "is only proper when `it appears certain that the plaintiff cannot prove any set of facts in support of [his] claim that would entitle [him] to relief.'" McAllister v. Federal Deposit Insurance Corporation, 87 F.3d 762, 765 (5th Cir. 1996) (quoting Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995)). In ruling on a motion to dismiss, the court may rely on "(1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997) (citations omitted); see also McAllister, 87 F.3d at 765 (citations omitted).
The defendants contend in their motion to dismiss that Roberts failed to plead the statutory requisites for a suit brought pursuant to 28 U.S.C. § 1346, and, thus, the court lacks subject matter jurisdiction. Motion to Dismiss at 2-5. That statute sets out the prerequisites for a district court to exercise subject matter jurisdiction over a case against the United States for wrongful or illegal tax collection. See 28 U.S.C. § 1346 (a). One of the prerequisites for suit under 28 U.S.C. § 1346 is that a taxpayer pay the full amount of the tax assessment for a disputed tax period before he brings an action against the United States seeking a refund. See Flora v. United States, 362 U.S. 145, 150-51, 177 (1960) (holding that district court lacked jurisdiction over a suit by a taxpayer for the refund of income tax payments because the taxpayer had not fully paid the entire amount of his assessment); Smith v. Booth, 823 F.2d 94, 96-97 (5th Cir. 1987) (holding that § 1346 only allows federal district court jurisdiction "in the context of a tax refund suit brought by a taxpayer who has fully paid the assessment.").
The statute provides in part:
(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.28 U.S.C. § 1346 (a)(1).
In this case, Roberts' complaint fails to allege that he has met the full payment requirement of 28 U.S.C. § 1346. At best, Roberts claims that the "spirit and the letter of the requirements to plead the jurisdictional prerequisites" has been "satisfied" because the IRS informed him that he could "file suit within two years to recover tax, penalties, and other amounts." Memorandum In Opposition To Defendant's Motion To Dismiss ("Response") at 2. This allegation is insufficient to satisfy the jurisdictional requirements for bringing suit under 28 U.S.C. § 1346. See Flora, 362 U.S. at 150-51.
III. CONCLUSION
For the reasons stated, the defendants' motion to dismiss is GRANTED. SO ORDERED.
The court also finds Roberts' claim against Secretary O'Neill is subject to dismissal because he is an improper party to this action. See, e.g., Drefrhinski v. Regan, 589 F. Supp. 1516, 1520 (W.D. La. 1984) (holding that Secretary of Treasury, as an officer of the United States, was an improper party and that "[a] suit for refund of a tax penalty may be maintained only against the United States and not against any officer or employee of the United States.").