Opinion
Civil Action 01-0262-BH-L
April 11, 2002
ORDER
Upon review of the file in this action, the court finds that plaintiff's complaint fails to state a claim upon which relief can be granted for the following noted reasons. Therefore, unless plaintiff amends his action for the purpose of stating a claim, it will be recommended that his action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii).
In the complaint filed on this court's form for an action under 42 U.S.C. § 1983 (Doc. 1), plaintiff alleges that in 2001, the Internal Revenue Service ("IRS") withheld his 2000 refund claiming that he owed taxes for 1992. Plaintiff claims that he was incarcerated in 1992 and therefore does not owe any taxes and that he was unsuccessful in his attempts to convey his position to the IRS through telephone calls and letters and in his recently commenced administrative claim. The court notes that at the time of filing, plaintiff was incarcerated at Mobile Community Based Facility, a work release facility with the Alabama Department of Corrections in Mobile, Alabama. For relief, plaintiff seeks reimbursement of the filing fees, litigation costs, and a refund of his overpaid taxes.
Subsequent to the filing of the complaint, plaintiff filed a motion for summary judgment (Doc. 9), which was stricken by the court because it did not contain a certificate of service. In this motion, plaintiff notified the court that he had pursued an administrative review with the IRS and, as a result, he received a check from the IRS for $644.00. Plaintiff claims that he is entitled to interest because the law provides for interest if the refund is not paid within 45 days from the date application therefor.
The court further notes that plaintiff filed this action on April 11, 2001 (Doc. 1) and then requested a stay when he was ordered by the court to pay the statutorily required partial filing fee of $51.97 (Doc. 5). See 28 U.S.C. § 1915(b)(1) (requiring a prisoner to pay initially a partial filing fee and to pay eventually the full filing fee). On May 22, 2001, plaintiff was granted a stay until August 21, 2001, at which time he was to advise the court whether he was successful in his efforts to resolve his claim with the IRS (Doc. 5). On August 28, 2001, plaintiff notified the court that he had not received an appropriate or reasonable response from the IRS and requested the court to enter an order for the business office to forward the partial filing fee to the court (Doc. 6), which was done (Doc. 7). The partial filing fee was paid on September 13, 2001 (Doc. 8). Then, on October 18, 2001, in the stricken motion (Doc. 9), plaintiff notified the court that he had received a refund.
The IRS filed its answer (Doc. 16) asserting that this court lacks jurisdiction over the IRS because it is not an agency authorized to be sued and that the IRS has refunded plaintiff's overpayment credit for 2000 and, therefore, this action is moot. The IRS filed, contemporaneously with its answer, a motion to vacate order of November 2, 2001, as to defendant (Doc. 17) in which relief is sought from the court's order requiring a special report be filed because plaintiff's action is moot. Defendant's motion to vacate order of November 2, 2001, as to defendant (Doc. 17) is ORDERED held in abeyance until the court has the opportunity to review plaintiff's amended complaint.
The court questions the defendant's mootness argument in light of plaintiff's request in the original complaint for filing fees. A prevailing party is permitted to recover under 26 U.S.C. § 7430(a)(2) "reasonable litigation costs incurred in connection with such court proceeding." See Cooper v. United States, 60 F.3d 1529, 1530 (11th Cir. 1995).
Upon review of this action, the court finds that this action does not arise under 42 U.S.C. § 1983. Plaintiff used the court's § 1983 complaint form to commence this action. Section 1983 requires that a defendant act under color of state law in order for liability to be imposed. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). However, this lawsuit does not concern state action, only federal action. Therefore, as the complaint now stands, plaintiff has failed to state a claim upon which relief may be granted.
Notwithstanding, an action may be maintained under 28 U.S.C. § 1346(a)(1) against the United States for an erroneously collected tax. United States v. Dalm, 494 U.S. 596, 601, 110 S.Ct. 1361, 1364, 108 L.Ed.2d 548 (1990). In order to maintain an action under this section, the proper defendant must be sued. The court agrees with defendant's first affirmative defense that the IRS cannot be sued in its own name because it is not an agency permitted by Congress to be sued eo nomine. Castleberry v. Alcohol Tobacco and Firearms Division of Treasury Dept. of U.S., 530 F.2d 672, 673 n. 3 (5th Cir. 1976) ("Congress has not constituted the Treasury Department or any of its subdivisions or bureaus as a body corporate and has not authorized either or any of them to be sued eo nomine") (citing Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed.2d 534 (1952); Lowe v. Internal Revenue Service, No. 93-1421-Civ.-J-20, 1995 WL 420817, at *2 (M.D. Fla. May 25, 1994) (unpublished) (holding the IRS is not a suable entity); see also 26 U.S.C. § 7803(a)(1) (the Commissioner of Internal Revenue shall be in the Department of Treasury). The proper defendant to a refund action under 28 U.S.C. § 1346(a)(1) is the United States.
The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc), adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to the close of business on September 30, 1981.
These deficiencies in the original complaint have caused plaintiff to fail to state a claim upon which relief may be granted and subject plaintiffs action to dismissal. However, if plaintiff wants to proceed on his claim, he is ORDERED to amend his complaint by May 12, 2002 by filing an amended complaint that corrects the noted deficiencies.
In pleading the amended complaint plaintiff is advised that "no suit for a refund shall be maintained in any court . . . until a claim for refund or credit has been duly filed with the Secretary." 28 U.S.C. § 7422(a). "Federal courts have no jurisdiction to entertain taxpayer allegations that impermissibly vary or augment the grounds originally specified by the taxpayer in the administrative refund claim." Charter v. United States, 971 F.2d 1576, 1579 (11th Cir. 1992). That is, a federal court will address only those grounds raised in the taxpayer's administrative claim filed with the IRS. The court cannot review grounds that were not included for the IRS's review. Id. Plaintiff should be mindful of this when pleading his amended complaint.
The failure to comply with this order within the prescribed time or to notify the court of a change in address will result in the dismissal of this action for failure to prosecute and to obey the court's order.