Opinion
No. 1:03-CV-46.
March 31, 2004
MEMORANDUM
Plaintiff, pro se, Thomas A. Gutherie, Sr. brings this action under 26 U.S.C. § 7422 for the sums Plaintiff paid toward civil penalties on various dates from 1993 through 2001 (Court File No. 1, Complaint). This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1344(a)(1) and venue lies in this district pursuant to 28 U.S.C. § 1402(a)(1).
Before the Court is a Motion to Dismiss filed by Defendant United States of America (Court File No. 4). In resolving this motion, the Court considered Defendant's supporting memorandum and reply (Court File Nos. 5, 7) and Plaintiff's response (Court File No. 6). For the following reasons, the Court will GRANT IN PART and DENY IN PART Defendant's Motion to Dismiss.
I. STANDARD OF REVIEW
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally come in two varieties. A facial attack on the subject matter jurisdiction alleged in a complaint challenges the sufficiency of the pleading. In reviewing a facial attack, a trial court takes the plaintiff's allegations in the complaint as true, similar to a Rule 12(b)(6) motion to dismiss. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A factual attack challenges the existence of subject matter jurisdiction. In reviewing a factual attack, a trial court attaches no presumption of truthfulness to the plaintiff's factual allegations. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996); Ritchie, 15 F.3d at 598; Ohio Nat'l, 922 F.2d at 325; Cooley v. United States, 791 F. Supp. 1294, 1298 (E.D. Tenn. 1992), aff'd sub nom. Myers v. United States, 17 F.3d 890 (6th Cir. 1994).
"When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). Where facts presented before the trial court give rise to a factual controversy concerning subject matter jurisdiction, the court is required to weigh the conflicting evidence and make findings of fact to decide whether jurisdiction exists. Id. (noting the district court is empowered to resolve factual disputes when necessary to address challenges to subject matter jurisdiction); RMI Titanium, 78 F.3d at 1134; Ritchie, 15 F.3d at 598; Ohio Nat'l, 922 F.2d at 325; Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915-18 (6th Cir. 1986).
II. RELEVANT FACTS
As President of Greensboro Lumber Company, Plaintiff Thomas A. Gutherie, Sr. was held liable under 26 U.S.C. § 6672 for "trust fund" withholding taxes the company was unable to pay for the taxable period ending September 30, 1990. From 1993 through 2001, Plaintiff made the following payments toward civil penalties assessed against him under § 6672:
$ 797.00 November 1, 1993 $4,751.43 June 12, 1995 $ 201.00 April 15, 1996 $ 600.19 April 15, 1997 $ 816.36 August 4, 1998 $ 273.94 April 15, 2000 $ 600.00 August 6, 2001
Plaintiff claims these amounts were erroneously assessed and collected against him, and he seeks to recover the sum $8,039.92, plus interest and costs and other relief allowed by law.
On June 30, 2000, Plaintiff filed a Claim for Refund and Request for Abatement with the Internal Revenue Service ("IRS"), seeking a refund of $7,439.92 (Court File No. 1, Exh. A). This figure is the sum of the payments Plaintiff made November 1, 1993, through April 15, 2000. On February 12, 2001, the IRS disallowed Plaintiff's claim for refund. On February 7, 2003, Plaintiff filed this action in this Court.
III. DISCUSSION
Defendant moves the Court to dismiss Plaintiff's claim for a refund of taxes, dividing Plaintiff's requested recovery of $8,039.92 into three groups: payments made on November 1, 1993, through April 15, 1997, totaling $6,349.62; payments made August 4, 1998, and April 15, 2000, totaling $1090.30; and payment made on August 6, 2001, totaling $600. For reasons explained below, the Court will address the arguments regarding these payments out of chronological order.
A. Payments made November 1993 through April 1997
The Court lacks subject matter jurisdiction over Plaintiff's claim to recover the payments he made from November 1993 through April 1997, so the Court will GRANT Defendant's motion to dismiss as to these amounts. For a federal court to have jurisdiction to consider the merits of a taxpayer's claim for refund against the IRS, the taxpayer must take the following steps:
Initially, the taxpayer must file a sufficient administrative claim with the IRS. See [26 U.S.C.] § 7422(a) (West Supp. 1998) (stating that there can be no suit prior to the filing of an administrative claim); Martin v. United States, 833 F.2d 655, 658-59 (7th Cir. 1987) ("A timely, sufficient claim for refund is a jurisdictional prerequisite to a refund suit."). The administrative claim must be filed before the later of two years from the time the tax was paid or three years from the time the tax return was filed. See [26 U.S.C.] § 6511(a) (West Supp. 1998). After filing a sufficient and timely administrative claim, the taxpayer may file an action in federal court if he is dissatisfied with the IRS' determination. However, the action must be filed within two years of the IRS' rejection of the claim. See [26 U.S.C.] § 6532(a)(1) (West 1989).Thomas v. United States, 166 F.3d 825, 828-29 (6th Cir. 1999).
Plaintiff seeks a refund of payments he made to the IRS in the amount of $8,039.92. A portion of the figure, $6,349.62, is based upon payments he made in November 1993, June 1995, April 1996, and April 1997. On June 30, 2000, more than two years after each of these payments, Plaintiff filed a claim for refund with the IRS for $7,439.92, a portion of which was based upon those payments. Plaintiff's administrative claim for refund of the November 1993 through April 1997 payments was not timely under 26 U.S.C. § 6511(a). Therefore, the Court lacks subject matter jurisdiction to consider the merits of Plaintiff's claim for refund of those amounts.
Plaintiff asserts the statute of limitations for filing his administrative claim for refund of the November 1993 through April 1997 payments was tolled for the period November 6, 1990, through October 27, 1998, because he was in bankruptcy during that time. Plaintiff cites no authority for this argument, and the Court can find none to support it. To the contrary, the United States Supreme Court considered tolling of the time limitations set forth in 26 U.S.C. § 6511(a) and concluded, "Congress did not intend the `equitable tolling' doctrine to apply to § 6511's time limitations." United States v. Brockamp, 519 U.S. 347, 354, 117 S.Ct. 849, 853, 136 L.Ed.2d 818 (1997). The statute itself contains provisions extending the time for filing an administrative claim by agreement, see § 6511(c), and for suspending the period of limitation while an individually is financially disabled by reason of a medically determinable physical or mental impairment, see § 6511(h). However, there is no showing either provision applies such that Plaintiff's June 30, 2000, administrative claim for refund was timely as to his payments from November 1993 through April 1997. Accordingly, the Court will GRANT Defendant's motion to dismiss as to those amounts.
B. Payment made August 6, 2001
Plaintiff's complaint seeks to recover the $600.00 he paid on August 6, 2001, but Plaintiff never filed an administrative claim with the IRS for the refund of this amount. Plaintiff's only claim for refund was filed June 30, 2000, and that claim was denied on February 12, 2001. That claim did not seek to recover the August 2001 payment — it could not have sought such a recovery because the amounts had not yet been paid. Plaintiff did not subsequently file any administrative claim for that amount. Because Plaintiff did not file an administrative claim for the refund of his August 2001 payment of $600.00 before bringing this action, the Court lacks subject matter jurisdiction to consider the merits of Plaintiff's claim for refund as to that amount. 26 U.S.C. § 7422(a) ("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. . . ."); McDonnell v. United States, 180 F.3d 721, 722 (6th Cir. 1999).
Plaintiff responds it is not necessary to file a formal claim for refund before filing an action to recover the $600.00 he paid on August 6, 2001. Plaintiff cites Leeke v. United States, where a taxpayer's claim form covering multiple tax periods was held to constitute an informal notice to the IRS for one of the periods mentioned in the form, for purposes of the court's jurisdiction over that period of assessment, despite the requirement the taxpayer file one formal claim for refund for each period of assessment. 737 F. Supp. 1013, 1016 (S.D. Ohio 1990). Plaintiff then relies on the inclusion of this $600.00 amount in his filings with this Court as his informal claim for refund. Plaintiff's argument is unavailing. A sufficient informal claim for refund "serves the same function as a formal refund claim, `to put the Commissioner on notice that a right is being asserted with respect to an overpayment of tax * * *.'" Furst v. United States, 678 F.2d 147, 151 (Ct.Cl. 1982) (quoting Newton v. United States, 163 F. Supp. 614, 618 (Ct.Cl. 1958). Plaintiff's filings in this action do not serve the same function as a formal refund claim filed with the IRS and do not constitute an informal claim that satisfies the requirements of 26 U.S.C. § 7422(a). Because Plaintiff did not file a sufficient, timely claim for refund of the $600.00 he paid on August 6, 2001, before filing this action, the Court will GRANT Defendant's motion to dismiss as to that payment Plaintiff seeks to recover.
C. Payments made August 1998 and April 2000
The administrative claim for refund Plaintiff filed on June 30, 2000, was sufficient and timely as to the payments he made in August 1998 ($816.36) and in April 2000 ($273.94), so Plaintiff's action to recover those payments complies with 26 U.S.C. § 7422(a). Defendant contends the Court nevertheless lacks subject matter jurisdiction over Plaintiff's action to recover these two payments ($1,090.30 total) because Plaintiff cannot demonstrate the payments "exceed the employment tax liability for one employee for one quarter of the periods at issue." (Court File No. 5, at 2).
Ordinarily a taxpayer must fully pay a tax assessment before a refund suit can be maintained in federal district court. 28 U.S.C. § 1346(a)(1); Flora v. United States, 362 U.S. 145, 177,
80 So. Ct. 630, 647, 4 L.Ed.2d 623 (1960). However, where a taxpayer seeks a refund for taxes assessed under 26 U.S.C. § 6672, the full-payment jurisdictional requirement is met where the taxpayer has paid the withholding tax of one employee for one quarter. Steele v. United States, 280 F.2d 89, 91 (8th Cir. 1960); Brammer v. United States, 897 F. Supp. 1022 (N.D. Ohio 1995).
On the current record in this case, the Court is unable to determine whether the $1,090.30 Plaintiff paid in August 1998 and April 2000 equals or exceeds the amount of employment tax liability for one employee for one quarter. At this time, therefore, the Court will DENY Defendant's motion to dismiss as to Plaintiff's claim for refund of the August 1998 and April 2000 payments.
IV. CONCLUSION
For the reasons stated above, the Court will GRANT IN PART Defendant's motion to dismiss as to certain payments claimed by Plaintiff, and the Court will DENY IN PART Defendant's motion as to $1,090.30 Plaintiff paid in August 1998 and April 2000, which Plaintiff seeks to recover.
An Order shall enter.
ORDER
In accordance with the accompanying Memorandum, the Court GRANTS IN PART and DENIES IN PART the Motion to Dismiss (Court File No. 4) filed by Defendant United States of America.SO ORDERED.