Opinion
Civil Action No. 04-CV-71092-DT.
February 1, 2005
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
This matter is before the court on Plaintiff's motion for reconsideration of an order granting Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.Pro. 12(b)(1).
Plaintiff Deborah Taitt, who is proceeding pro se, brought this action against Defendant Internal Revenue Service (IRS), alleging misconduct in the handling of her personal audit and the audit of Smash Wrecking, Inc., for the tax years of 2000 and 2001. Plaintiff's complaint consisted of a long list detailing her correspondence with employees of the IRS. In an opinion and order amending Plaintiff's complaint to name the United States as the proper defendant pursuant to Fed.R.Civ.Pro. 15(a), this court also granted Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.Pro. 12(b)(1). This court held that, as a sovereign, the United States cannot be sued in its own courts without its express consent. Further, the United States has expressly excepted this type of suit from its waiver of sovereign immunity. Alternatively, even if this suit were within the United States' waiver of sovereign immunity, this court would lack subject matter jurisdiction due to Plaintiff's failure to follow certain procedural prerequisites to bringing suit.
See United States v. Dalm, 494 U.S. 596, 608 (1990). Any waiver of such immunity must be unequivocally expressed and narrowly construed. See Lehman v. Nakshian, 453 U.S. 156, 151 (1981); United States v. Mitchell 445 U.S. 535, 538 (1980).
See 28 U.S.C. § 2680(c) (excepting from waiver "any claim arising in respect of the assessment or collection of any tax"). This exception has been broadly construed to preclude suits for misconduct by IRS employees that is in any way related to their official duties. See Cappazoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981).
While 28 U.S.C. § 1346(a)(1) grants original jurisdiction to the federal district courts over claims for the "recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected," this jurisdiction is conditioned upon compliance with the procedural prerequisites set forth in 26 U.S.C. § 7422(a). See Martin v. Comm'r of Internal Revenue, 753 F.2d 1358 (6th Cir. 1985); United States v. Rochelle, 363 F.2d 225 (5th Cir. 1966).
Having determined that this court lacked subject matter jurisdiction over Plaintiff's claim, the court granted Defendant's motion to dismiss. Plaintiff now asks the court to reconsider that order.
Local Rule 7.1(g)(3) states the applicable standard for motions for reconsideration:
Generally, and without restricting the court's discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties have been misled but also show that correcting the defect will result in a different disposition of the case.
Plaintiff's motion has failed to meet this standard and the motion for reconsideration is therefore denied.
Plaintiff's motion can only be read as a continuation of her initial complaint, which this court has previously ruled on. Rather than raising new issues relevant to the motion, Plaintiff simply details further communication problems between herself and IRS employees. While these difficulties are understandably frustrating, they do not amount to evidence of a palpable defect as required by Local Rule 7.1(g)(3). Plaintiff fails to assert any grounds which confer subject matter jurisdiction upon this court. Nor has she demonstrated that this court has misstated or misconstrued the relevant law. Plaintiff has clearly not met the requirements set forth by the local rule for reconsideration. Accordingly,
IT IS ORDERED that plaintiff's motion for reconsideration is denied.