Opinion
CIVIL ACTION NO. 06-3304.
November 1, 2006
ORDER
AND NOW, this 1st day of November, 2006, upon consideration of the Government's motion to dismiss for lack of subject matter jurisdiction (docket entry # 7) and petitioners' response (docket entry # 8), as well as petitioners' motion to compel (docket entry # 6) and motion for summary judgment (docket entry # 5), and the Court finding that:
(a) The Kesslers bring their case under 26 U.S.C. §§ 6320 and 6330, Compl. ¶ 5;
(b) The Commissioner now moves to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction;
(c) Although petitioners argue in their response that they have been "jerked around" by the Commissioner, Pet. Resp. at 2, that is not sufficient to grant us jurisdiction in the absence of a statutory authorization to hear the case;
(d) It is unclear whether petitioners seek judicial review of their administrative hearing on a collection due process theory under 26 U.S.C. 6330(d) or whether they are bringing a tax refund suit under 28 U.S.C. § 1346(a);
(e) We lack subject matter jurisdiction under either of those theories;
(f) 26 U.S.C. § 6330(d)(1)(B) provides jurisdiction to the district courts only if the Tax Court lacks jurisdiction of the underlying tax liability;
(g) Because the underlying tax liability is for income taxes, there is no question that the Tax Court has jurisdiction, see Hart v. I.R.S., 2001 WL 393699 (E.D. Pa. Feb. 8, 2001) at *1;
(h) If, on the other hand, petitioners bring an action for refund, they must first file an administrative claim for the refund, 26 U.S.C. § 7422(a);
(i) Petitioners have not alleged that they have filed an administrative claim and the Commissioner is not aware of one;
Petitioners claim that their complaint satisfied the requirement for an administrative claim, Pet. Resp. at 5, but this is clearly not the case. The statute is very clear that such a claim must be filed with the Secretary in accordance with the relevant regulations. 26 U.S.C. § 7422(a).
(j) Because we lack jurisdiction under either 26 U.S.C. § 6330 or 28 U.S.C. § 1346, and because neither party has cited any other basis for jurisdiction, we lack jurisdiction over this case;
As a technical matter, our dismissal of a refund action would be for failure to state a claim under Fed.R.Civ.P. 12(b)(6) rather than lack of subject matter jurisdiction.
(k) Based on our lack of jurisdiction and our decision, therefore, to dismiss this action, we will deny petitioners' other pending motions as moot;
It is hereby ORDERED that:
1. The Government's motion to dismiss is GRANTED;
2. This action is DISMISSED;
3. Petitioners' motion to compel is DENIED AS MOOT;
4. Petitioners' motion for summary judgment is DENIED AS MOOT;
5. The Clerk of Court shall CLOSE this matter statistically.