Opinion
A-22-CV-240-RP-SH
04-15-2022
ANTHONY C. ALLEN #BQ6634 v. LINDA APONTE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules. Before the Court is Plaintiff Anthony Curtis Allen's Petition for Writ of Mandamus. Allen, proceeding pro se, has been granted leave to proceed in forma pauperis.
I. STATEMENT OF THE CASE
At the time he filed his complaint, Allen was confined in St. Petersburg, Florida. Allen complains he has not received from the Internal Revenue Service (IRS) any of his Economic Impact Payments pursuant to the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (2020). Allen indicates he filed the requisite tax forms and admits he received correspondence from the IRS. Allen indicates he received a second notice from the IRS in January 2022, indicating there was a problem with his name and/or taxpayer identification number. Allen asserts he did not respond to the second notice, because “it certainly didn't do any good the first time.” Allen requests the Court to order the IRS to mail him his three Economic Impact Payments.
II. DISCUSSION AND ANALYSIS
A. Standard under 28 U.S.C. § 1915(e)
An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from suit. A dismissal for frivolousness or maliciousness may occur at any time, before or after service of process and before or after the defendant's answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). When reviewing a plaintiff's complaint, the court must construe plaintiff's allegations liberally. See Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner's pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
B. Tax Refund Request
The CARES Act established a tax credit to eligible individuals and is an advance refund of the tax imposed under subtitle A of the tax code. Scholl v. Mnuchin, 489 F.Supp.3d 1008, 1021 (2020). The CARES Act provided that “each individual who was an eligible individual for such individual's first taxable year beginning in 2019 shall be treated as having made a payment against the tax imposed by chapter 1 for such taxable year in an amount equal to the advance refund amount for such taxable year.” Id. (quoting 28 U.S.C. § 6428(f)(1)). Therefore, the Act provides “if an eligible individual filed a tax return in 2018 or 2019 or filed one of the enumerated Social Security forms, then the Act directs the IRS to treat those taxpayers as eligible for an advance refund of the tax credit.” Scholl, 489 F.Supp.3d at 1021.
Pursuant to 28 U.S.C. § 1346(a), the United States consents to be sued in the district court for refund of taxes. But, the United States consents to be sued for a tax refund only where the taxpayer has followed the conditions set forth in 26 U.S.C. § 7422(a), which states: “No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected ... until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.”
Before filing suit in federal court for credit or refund of overpaid taxes, a taxpayer must first comply with the tax refund scheme established in the tax code by filing an administrative claim with the IRS. United States v. Clintwood Elkhorn Mining. Co., 553 U.S. 1, 4 (2008); see 26 U.S.C. § 7422(a). To overcome sovereign immunity in a tax refund action, a taxpayer must file a refund claim with the IRS within the time limits established by the Internal Revenue Code. Duffie v. United States, 600 F.3d 362, 384 (5th Cir. 2010).
While Allen allegedly filed a tax return, he fails to allege he filed an administrative claim as required by section 7422(a) of the Internal Revenue Code. Because Allen has not exhausted his administrative remedies, the Court lacks jurisdiction over his request for a tax refund at this time.
III. RECOMMENDATION
It is therefore recommended that Allen's complaint be DISMISSED WITHOUT PREJUDICE for want of jurisdiction pursuant to 28 U.S.C. § 1915(e).
IV. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained within this Report within fourteen (14) days after being served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations and, except on grounds of plain error, shall bar the party from appellate review of proposed factual findings and legal conclusions accepted by the District Court to which no objections were filed. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S.Ct. 466, 472-74 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).