Opinion
Case No. 00-CV-74877
February 12, 2001
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS UNDER RULE 12(b)(1), AND; GRANTING DEFENDANT'S MOTION TO DISMISS UNDER RULE 12(b)(6)
The United States of America moves under Federal Rules of Civil Procedure 12(b)(1) and (6) to dismiss plaintiff Vertis Louden's claim for a $10,442.77 federal income tax refund for the year 1999. Plaintiff has not filed a response to the motion. Oral argument would not significantly aid the decisional process. Pursuant to E.D. Mich. Local R. 7.1(e)(2), it is ORDERED that the motion be resolved without oral argument. For the reasons set forth below, defendant's motion to dismiss under Rule 12(b)(1) will be DENIED and defendant's motion to dismiss under Rule 12(b)(6) will be GRANTED.
Plaintiff, appearing pro se filed a complaint on November 6, 2000 alleging that he and his wife filed a request for a 1999 federal income tax refund of $10,442.77 in their April 15, 2000 Form 1040 U.S. Individual Tax Return. Plaintiff and his wife filed the return as being "Married filing joint return", and stating they earned "-0-" in "Wages, salaries, tips etc.", had "-0-" in "Taxable Income", and yet had "$10,442.00" in "Federal income tax withheld from Forms W-2 and 1099." Copies of the W-2 Forms submitted to the I.R.S. and attached to the complaint indicate: (1) plaintiffs wife earned a gross pay of $11,132.67 from "Enthone-OMI" and had $2,101.14 in federal income tax withheld, while she earned regular wages of $38,557.64 from "Vision Environmental Inc." with $2,350.02 in federal taxes withheld, and; (2) plaintiff earned $34,767.32 from "L.I.N.C." and had $3,640.70 in federal income tax withheld. Plaintiff's theory of recovery is that taxes had not been "assessed" against his and his wife's income at the time they filed their April 15, 2000 refund claim, and no court of competent jurisdiction had ever determined that they owed income taxes in 1999. Plaintiff therefore alleges he and his wife are entitled to a full refund of all federal taxes withheld by their employers. Plaintiff relies on 26 U.S.C. § 6201(a)(1), which reads:
The court's calculation of $8,092.04 in federal income taxes withheld does not match plaintiffs calculation of $10,442.77. The accuracy of the calculations is irrelevant for purposes of this motion.
6201. Assessment authority
(a) Authority of Secretary.—The Secretary is authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title, or accruing under any former internal revenue law, which have not been duly paid by stamp at the time and in the manner provided by law. Such authority shall extend to and include the following:
(1) Taxes shown on return.—The Secretary shall assess all taxes determined by the taxpayer or by the Secretary as to which returns or lists are made under this title.
Plaintiff claims one cannot owe taxes until the Treasury Secretary has "assessed" a tax and, because the Secretary did not assess a tax before the subject refund claim was filed plaintiff and his wife owed no tax. Plaintiff also alleges he and his wife are entitled to the refund as a "credit" under 26 U.S.C. § 31(a)(1).
Defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1) arguing the court lacks subject matter jurisdiction because plaintiff filed this lawsuit less than 6 months before he filed his refund claim. See 26 U.S.C. § 6532(a)(1). In the alternative, defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(6) arguing plaintiff has failed to state a claim on which relief may be granted because 26 U.S.C. § 1 "imposes" a tax upon "the taxable income of . . . every married individual . . . who makes a single return jointly with his spouse" regardless of the Secretary's assessment of taxes under 26 U.S.C. § 6201(a)(1).
"No suit or proceeding under section [ 26 U.S.C. § 7422(a)] for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates."
I. Rule 12(b)(1)
When reviewing a motion to dismiss under Rule 12(b)(1) which makes a factual attack on the pleadings, the court may weigh the evidence presented in deciding the motion. See The Ohio National Life Ins. Co. v. United States, 922 F.2d 320, 325 (1990). Plaintiff alleges in his complaint that he filed the Form 1040 on April 15, 2000. The Form itself is dated April 15, 2000. Defendant has not proffered evidence to support its factual assertion that plaintiff filed his refund claim on June 26, 2000. See Defendant's Memorandum, at 2. Absent evidence contradicting plaintiffs claim that he filed the subject Form 1040 on April 15, 2000, and noting that plaintiff filed this lawsuit on November 2, 2000, it appears plaintiff has complied with 26 U.S.C. § 6532(a)(1) by waiting more than 6 months after filing his refund claim before filing this lawsuit. Defendant's motion to dismiss based on lack of subject matter jurisdiction will be denied.
II. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a claim on an issue of law. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
It is beyond doubt that plaintiff can prove no set of facts that would entitle him to relief. As argued by defendant, 26 U.S.C. § 1 "imposed" a tax upon plaintiffs and his wife's taxable income by operation of law, creating the liability and affirmative duty in plaintiff and his wife to pay federal income taxes on the money they earned through wages and salaries. See Tornichio v. United States, No. 5:97CV2794, 1998 WL 381304, at *2 (N.D. Ohio March 12, 1998) (citing Gabelman v. Commissioner of Internal Revenue, 86 F.3d 609, 611 (6th Cir. 1996)). With certain exceptions not applicable here, 26 U.S.C. § 6012 requires all individuals to file a self-assessment of their tax. Id. In light of the W-2 Forms submitted by plaintiff and his wife, their statements in their Form 1040 that they earned "-0-" in "Wages, salaries, tips etc.", and had "-0-" in "Taxable Income", were clearly frivolous. See Sisemore v. United States, 797 F.2d 268, 270 (6th Cir. 1986) (finding tax return indicating self-assessment of zero income was frivolous where return also indicated taxes were withheld on wages earned). Plaintiff's claim that he and his wife owed no taxes by operation of 26 U.S.C. § 6201(a)(1) is simply without legal merit.
Plaintiffs claim that he and his wife are entitled to a full tax refund under 26 U.S.C. § 31(a)(1) is also without legal merit, as the credit "shall be allowed to the recipient of the income as a credit against the tax imposed." (emphasis added). Plaintiff is unable to show that no tax would be imposed under 26 U.S.C. § 1 on a gross income of $84,457.63, the income set forth in the W-2 Forms submitted to the Internal Revenue Service.
Accordingly,
Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) is hereby DENIED. Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is hereby GRANTED. Plaintiff's claims are hereby DISMISSED with prejudice.
SO ORDERED.
JUDGMENT
Pursuant to the court's opinion and order of even date granting the defendant's motion for dismissal under Federal Rule of Civil Procedure 12(b)(6),IT IS ORDERED AND ADJUDGED that judgment hereby is GRANTED in favor of defendant and against plaintiff Vertis L. Louden, Jr.. Plaintiff's claims are hereby DISMISSED with prejudice in their entirety.