Opinion
No. 6:02-CV-12 (WLS)
October 17, 2002
ORDER
Presently pending before the Court is Defendants' motion to dismiss Plaintiffs complaint. (Tab 8). For the following reasons, Defendants' motion to dismiss is GRANTED.
DISCUSSION
William Omuna, a pro se plaintiff, filed the instant complaint against Defendant Charles Rossotti, the commissioner of the Internal Revenue Service, to recover a refund he alleges is owed to him from the 1996 tax year and to recover a $600 rebate check under the Economic Growth and Tax Relief Reconciliation Act of 2001. Defendant has filed a motion to dismiss based on several grounds. (Tab 8). Defendant alleges that this Court lacks subject matter jurisdiction and that Plaintiff has failed to state a claim for which relief can be granted.
Defendant argues that suits against federal employees in their official capacity are suits against the United States. Therefore, the complaint should be dismissed for failure to name the proper party. It is well settled that the United States may be sued only to the extent that it has consented to suit by statute. United States v. Dalm, 494 U.S. 596, 608 (1990). Where there is lack of consent to suit by the United States, dismissal of the suit for lack of subject matter jurisdiction is required. United States v. Mitchell, 445 U.S. 535, 538 (1980). The Plaintiff bears the burden of pleading the specific provision of the United States Code waiving the sovereign immunity of the United States. Malone v. Bowden, 369 U.S. 643 (1962).
In this case, Plaintiff has asserted that this Court has jurisdiction over his claims pursuant to 26 U.S.C. § 7422. Section 7422 provides in pertinent part:
(a) No suit prior to filing claim for refund. No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.26 U.S.C. § 7422.
In Count I, Plaintiff allegedly is seeking a refund for certain tax years. Before the Court has jurisdiction to decide a tax refund case, the Plaintiff must pay the income taxes assessed and file an administrative claim for a refund with the IRS. Vintilla v. United States, 931 F.2d 1444, 1445 (11th Cir. 1991); 26 U.S.C. § 7422. If the administrative claim is denied, the taxpayer may then file a tax refund suit in the district court within the time constraints provided by 26 U.S.C. § 6532 (a)(1). Compliance with these requirements is jurisdictionally required of the taxpayer before initiating suit.
In the instant case, the complaint fails to state any facts to meet the jurisdictional requirements of the statute. Plaintiff does not assert that he has filed a timely claim for a refund or that he has complied with the time constraints set forth in 26 U.S.C. § 6532 (a)(1). To the extent that Count I can be construed as a refund action, this Court lacks subject matter jurisdiction to decide the claim.
A close reading of the complaint, however, reveals that Plaintiff is not seeking a refund as defined by the statute but a replacement check that had somehow been lost. As with a refund action, the code sets forth certain administrative actions that the taxpayer must comply with before the taxpayer may sue to recover a replacement check from the IRS. Title 31 § 3702(c)(1) provides that "[a]ny claim on account of a Treasury check shall be barred unless it is presented to the agency that authorized the issuance of such check within 1 year after the date of issuance of the check. . . ." 31 U.S.C. § 3702 (c)(1). Thus, Plaintiff had one year from the date the check was issued, or until September 11, 1999, to make a claim for the lost check. Plaintiff did not make any allegations in his complaint, or in his response to the IRS's motion to dismiss, that he met this jurisdictional prerequisite. Therefore, this Court lacks jurisdiction over Count I.
Count II of the complaint is similarly defective. In Count II, Plaintiff alleges that he is entitled to a $600 refund as a result of the passage of the Economic Growth and Tax Relief Reconciliation Act of 2001, Pub.L. No. 107-16, 115 Stat. 38 (hereinafter the "Act"). Essentially, the Act reduced the amount of tax owed on the first $12,000 made in 2001 by $600 and entitled the taxpayer to receive the refund prior to filing his 2001 return. But as a prerequisite, the taxpayer had to file a return for the tax year 2000. See In re Lambert, 273 B.R. 887, 889 (Bankr. D. Or. 2001).
In order for Plaintiff to be eligible for the $600 refund he must have filed and paid taxes in 2000. Neither in his complaint, nor his response to the motion to dismiss did Plaintiff allege that he filed a return or paid taxes in the year 2000. Therefore, Plaintiff has failed to state a claim for which relief can be granted. In addition, as with Count I, Plaintiff has failed to plead sufficient facts to show that he has met his jurisdictional requirements for filing a tax refund suit.
For the foregoing reasons, the Government's motion to dismiss (Tab 8) is GRANTED. In addition, Plaintiffs remaining motions (Tabs 7, 12, 15, 16, 18) are DENIED as moot. Plaintiffs motion to extend time to answer Defendant's motion to dismiss (Tab 11) is GRANTED NUNC PRO TUNC to July 1, 2002. Therefore, the case is DISMISSED.
SO ORDERED.