Opinion
Civil Action No. 2:03cv287GRo.
June 17, 2004
MEMORANDUM OPINION
The Defendant, Commissioner of Internal Revenue Service, has moved this Court pursuant to Rule 8(a), 12(b)(1), (2), (4), (5) and (6) of the Federal Rules of Civil Procedure, to dismiss this action [3-1]. Plaintiff, ISI, Inspection Services, Inc., a Mississippi corporation, filed this action against the Commissioner of Internal Revenue Service alleging that unspecified federal taxes were erroneously assessed against it and that it seeks to appeal the notice of assessment in this Court.
Analysis
A suit against the Commissioner of Internal Revenue is a suit against the sovereign. Such a suit is not allowed absent an express waiver of sovereign immunity. A party who sues the United States has the burden of identifying specific statutes waiving the United States of America's [United States] sovereign immunity and showing that the requirements of such statutes have been met. Absent a waiver of sovereign immunity, this Court is without jurisdiction to entertain a suit against the United States.
Wilkerson v. United States, 67 F.3d 112, 118 (5th Cir. 1995).
Cole v. U.S., 657 F.2d 107, 109 (7th Cir. 1981) ( citing Malone v. Bowdoin, 369 U.S. 643 (1962)).
United States v. Mitchell, 445 U.S. 535, 538 (1980).
District courts are provided with jurisdiction to review the correctness of an IRS tax assessment under two statutes: 26 U.S.C. § 7422(a) and 28 U.S.C. § 1346(a). These statutes have been interpreted to require the filing of an administrative Claim for Refund and full payment of the income taxes assessed against it before a suit can be maintained in district court. The plaintiff does not allege that it filed a Claim for Refund or that it paid the income taxes assessed against it.
Flora v. U.S., 362 U.S. 145, 177 (1960). McMillen v. U.S. Dep't of Treasury, 960 F.2d 187, 188-89 (1st Cir. 1991).
Further, the plaintiff has not responded to this motion as required and may thus be granted as unopposed.
UNIFORM LOCAL RULES FOR THE UNITED STATES DISTRICT COURTS FOR THE NORTHER AND SOUTHERN DISTRICT OF MISSISSIPPI, Local Rule 7.2(c)(2).
Accordingly, the Court finds this action should be dismissed for lack of subject matter jurisdiction. Each party shall bear its respective costs in connection with this motion.
FINAL JUDGMENT
This matter is before the Court on the motion to dismiss [3-1] filed by the Defendant, the Commissioner of Internal Revenue Service. Pursuant to the Memorandum Opinion in this cause, this date, incorporated herein by reference, it is herebyORDERED AND ADJUDGED that the motion [3-1] of the Defendant be, and is hereby, granted and this cause is hereby dismissed. It is further,
ORDERED AND ADJUDGED that each party shall bear their respective costs.
SO ORDERED AND ADJUDGED.