Opinion
NO. 3-04-CV-0442-D
April 2, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is an unspecified civil action brought by Plaintiff Randall D. Marshall against his former wife, DeMarian Marshall. On March 2, 2004, plaintiff tendered a one-page complaint to the district clerk and filed an application for leave to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on March 29, 2004. The court now determines that this case should be summarily dismissed for lack of subject matter jurisdiction.
II.
Although his complaint and interrogatory answers are less than a model of clarity, it appears that plaintiff seeks a declaratory judgment or an injunction to compel his former wife to share a "Head of Household With Qualifying Child" tax credit with him. Evidently, DeMarian Marshall has claimed this credit on her tax returns since the couple divorced in 2003. Now plaintiff wants to claim a portion of this credit on his tax returns.A.
The court must initially examine the basis for federal subject matter jurisdiction. Unless otherwise provided by statute, federal district courts have jurisdiction over: (1) federal questions arising under the Constitution, laws, or treaties of the United States; and (2) civil actions where the amount in controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different states or foreign nations. See 28 U.S.C. § 1331 1332. A party seeking to invoke the jurisdiction of a federal court must prove that jurisdiction is proper. See Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995), cert. denied, 116 S.Ct. 771 (1996).
B.
Plaintiff alleges no federal constitutional or statutory basis for compelling his former wife to share a "Head of Household With Qualifying Child" tax credit with him. Therefore, the only basis for federal jurisdiction is diversity of citizenship. It is clear from the complaint and the attachments thereto that plaintiff and his former wife are both citizens of Texas. Nor has plaintiff demonstrated that the amount in controversy, the value of his claimed tax credits, exceeds $75,000. Consequently, diversity jurisdiction is not proper.
Nor is it clear that plaintiff has ever tried to claim this credit on any of his tax returns. In order to challenge the denial of a tax credit in federal district court, plaintiff must first file an administrative claim for a refund with the Internal Revenue Service and make full payment of all tax liability. See Humphreys v. United States, 62 F.3d 667, 672 (5th Cir. 1995), citing 26 U.S.C. § 7422.