Opinion
CIV S-02-0010-GEB-PAN-PS
June 19, 2002
Findings and Recommendation
Plaintiff sues the Commissioner of Internal Revenue for damages for emotional distress resulting from the alleged wrongfully collection from her in 1998 of $9,000 employment taxes later refunded with interest.
On April 9, 2002, plaintiff moved for summary judgment. That motion is denied upon the ground plaintiff has not satisfied Fed.R.Civ.P. 56(c).
On April 25, 2002, plaintiff moved for default judgment. The motion is denied as plaintiff has failed to show that defendant was properly served. Fed.R.Civ.P. 4.
Defendant moves to dismiss for lack of jurisdiction. Plaintiff opposes, claiming the court has jurisdiction under 28 U.S.C. § 1346(a) and 1346(b)(1).
Section 1346(a) confers upon this court jurisdiction concurrent with the Court of Federal Claims over any civil action against the United States to recover an internal revenue tax erroneously or illegally collected. This is not such an action; even if a suit against the Commissioner be deemed one against the United States, it is not an action to recover a tax because plaintiff alleges the tax collected from her in 1998 was later refunded with interest.
The jurisdiction conferred by section 1346(b) specifically excludes claims arising in respect of the collection of any tax. 28 U.S.C. § 2680(c). 26 U.S.C. § 7433 permits an action in district court for damages for unauthorized collection actions but requires exhaustion of administrative remedies and is subject to a two-year limitation period, neither of which requirements does plaintiff satisfy.
Plaintiff has not demonstrated this court's jurisdiction and upon that ground I recommend the action be dismissed.