Broussard v. Rubin

Full title: CONNIE M. BROUSSARD v. ROBERT E. RUBIN, SECRETARY OF UNITED STATES…

Court: United States District Court, W.D. Louisiana, Lake Charles Division

Date published: Jan 16, 2001

DOCKET NO. 00 CV 1724 (W.D. La. Jan. 16, 2001)

Opinion

DOCKET NO. 00 CV 1724

January 16, 2001

MEMORANDUM RULING

JAMES T. TRIMBLE, JR., United States District Judge.

Presently before the court is a Motion to Dismiss by the defendants. The motion alleges that the plaintiff did not name the proper party to this suit and that she did not allege the jurisdictional prerequisites mandated by 26 U.S.C. § 7422.

The plaintiff; Connie Broussard ("Broussard"), filed estimated income tax payments in 1993 and 1994, but did not file her income tax returns until 1998. When she requested a refund based upon her 1998 computations, the IRS informed her that the time within which she could request a refund had expired.

The defendants move for dismissal pursuant to Rule 12(b)(6), failure to state a claim upon which relief can be granted. Rule 12(b) states that "[I]f on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." The movers did not introduce matters outside the pleadings in this case, therefore the court will consider this a Rule 12(b) motion.

On a F.R.Civ.P. Rule 12(b)(6) motion, the Court must view the plaintiffs' complaint in the light most favorable to the plaintiffs and must accept as true all of the factual allegations in the complaint.¹ The motion will be denied if the allegations support relief on any possible theory.² The court will "bend over backwards to avoid granting a 12(b) motion to dismiss."³

1 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 1160, 1161 (1993).

2 Cinel v. Connick, 15 F.3d 1338 (5th Cir. 1994).

3 McCann v. Texas City Refining, Inc., 984 F.2d 667, 673 (5th Cir. 1993).

"The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a)."⁴ All that is required is that the petition include "a short and plain statement of the claim that gives the defendants fair notice of what the plaintiffs' claim is and the grounds upon which it rests."⁵

4 Wright Miller, Federal Practice and Procedure Civil 2d, § 1357 at n. 11; Leatherman, supra at 1163.

5 Leatherman, supra at 1163 (Quoting Conley v. Gibson , 78 S.Ct. 99, 103 (1957)).

There is no requirement that the plaintiff "set out in detail the facts upon which he bases his claim."⁶ General factual allegations are sufficient and the court "will presume that general allegations embrace those specific facts that are necessary to support the claim."⁷ However, conclusory allegations concerning the legal affect of the events alleged do not have to be accepted by the court.⁸

6 Leatherman, supra at 1163.

7 National Organization for Women, Inc. v. Scheidler, 114 S.Ct. 798, 803 (1994) (quoting Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2137 (1992)).

8 Wright Miller, Federal Practice and Procedure: Civil 2d § 1357, pp. 311-21.

Additionally, the court recognizes that pleadings filed by individuals proceeding pro se are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519 (1972); Alexander v. Ware, 714 F.2d 416, 419 (5^th Cir. 1983). In fact, pro se pleadings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from them. Haines, 404 U.S. at 521.

26 U.S.C. § 7422 stipulates that no civil action for a refund may be filed until a claim for a refund or credit has been filed with the Secretary. The plaintiff; in the Complaint, alleges that she went through the IRS appeals system to no avail. In Broussard's Opposition to the Motion to Dismiss, she alleges that IRS publications advised her that a claim for a refund could be filed within three years of the date she filed her return. She filed her return in 1998 and filed this suit within three years of that date.

Unfortunately, 26 U.S.C. § 6511(a) states that the period of limitation for filing a claim is two years from the time a tax was paid if no return was filed. Broussard acknowledges that she received notice that her claim has prescribed in 1998, prior to her filing the returns. The IRS denied her claim for a refund based upon the fact that she had not filed a return within two years of paying the taxes. Even construing the complaint liberally cannot belie the fact that the petition is prescribed on the face of the pleadings. The limitations period governing tax refunds is jurisdictional in nature and cannot be waived. Gabelman v. C.I.R., 86 F.3d 609 (6^th Cir. 1996).

Accordingly, Ms. Broussard's failure to satisfy the statutory time limits constitutes a jurisdictional bar to this lawsuit for refund. See Pitre v. I.R.S., 938 F. Supp. 95 (D.N.H. 1996). The defendants' Motion to Dismiss must be granted. The plaintiff has failed to allege the jurisdictional prerequisites mandated by 26 U.S.C. § 7422.

JUDGMENT

In accordance with the corresponding Memorandum Ruling, the Motion to Dismiss by the defendants IS GRANTED.

IT IS ORDERED that this suit be DISMISSED WITH PREJUDICE at the plaintiff's cost.