Opinion
04-cv-00415 (ADS)(JO).
December 27, 2004
JILL HOWELL BASTABLE, East Moriches, NY, Plaintiff Pro Se.
Bonni Jessica Perlin, Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC, Attorneys for the defendants.
ORDER
This action was commenced by plaintiff Jill Howell Bastable, proceeding pro se, seeking recovery of $92.84 that the defendant Internal Revenue Service (IRS) allegedly owes her. The plaintiff also seeks to hold the defendant United States Postal Service liable for allegedly failing to deliver the plaintiff's amended return to the IRS within the applicable time period. Currently before the Court is the motion of the United States ("Government"), pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the action for lack of subject matter jurisdiction. For the reasons stated below, the Government's motion is granted.
I. BACKGROUND
On April 15, 1999, the plaintiff timely filed a federal tax return for the 1998 calendar year. The plaintiff alleges that on March 2, 2002, she mailed an amended tax return to the IRS by enclosing a Form 1040X-1998. However, the IRS did not receive the form until it was attached to a letter from the plaintiff that was mailed to the Criminal Investigation Division of the IRS on August 19, 2002. The letter stated that the plaintiff had sent the form on time "within a week of the date March 2, 2002." The form is signed and dated March 2, 2002. In the amended return, the plaintiff claimed that she was entitled to an additional refund based on child and dependant care expenses in the amount of $92.84. The claim was disallowed by the IRS on December 15, 2003. The plaintiff commenced the present action by filing this complaint on February 2, 2004.
II. DISCUSSION
When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court may consider affidavits and other materials beyond the pleadings to resolve questions of jurisdiction. Antares Aircraft, L.P. v. Fed. Rep. of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215, 120 L. Ed. 2d 892, 112 S. Ct. 3020 (1992); Exchange Nat'l Bank v. Touche Ross Co., 544 F.2d 1126, 1130 (2d Cir. 1976). The court must accept as true all material factual allegations in the complaint but will not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992) ("[A]rgumentative inferences favorable to the party asserting jurisdiction should not be drawn."). The party who seeks the court's jurisdiction has the burden of proof and must allege facts sufficient to demonstrate that jurisdiction is proper. Bd of Educ. of Mt. Sinai Union Free School Dist. v. New York State Teachers Retirement System, 60 F.3d 106, 109 (2d Cir. 1995) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 608, 107 L. Ed.2d 603 (1990)).
The Court is mindful that the plaintiff is proceeding pro se and that her submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'"Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)). District courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is also aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law. . . ." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotations and citation omitted).
Under settled principles of sovereign immunity, the United States is immune from suit unless it consents to be sued. United States v. Dalm, 494 U.S. 596, 608, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (1990). The United States has consented to suits for the refund of wrongly paid taxes. See Miller v. United States, 500 F.2d 1007, 1008 (2d Cir. 1974). However, a taxpayer may only invoke the waiver of sovereign immunity for a refund of purportedly overpaid taxes by complying with the requirements set forth in 26 U.S.C. § 7422 regarding the filing of a claim. Deyo v. IRS, 2004-2 U.S. Tax Cas. (CCH) ¶ 50,381 (D. Conn. 2004). Section 7422(a) provides:
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 USCS § 7422(a). Treasury regulations state that a Form 1040X constitutes a claim for a refund when a Form 1040 has already been filed for that tax year. See Treas. Reg. § 301.6402-3(a) (2004).
The timely filing of a claim for a refund is a jurisdictional prerequisite to bringing an action in district court. C.I.R. v. Lundy, 516 U.S. 235, 240, 116 S. Ct. 647, 651, 133 L. Ed. 2d 611 (1996). In order to be timely, a "[c]laim for credit or refund of an overpayment of any tax . . . shall be filed by the taxpayer within 3 years from the time the return was filed." 26 U.S.C. § 6511. Pursuant to statute, a taxpayer may prove timely filing by producing either the postmarked envelope, or the registered or certified mail receipt. 26 U.S.C. § 7502. "When taxpayers fail to present the actual postmarked envelope or receipt," however, "courts have consistently rejected testimony or other evidence as proof of the actual date of mailing." Weisman v. IRS., 972 F. Supp. 185, 188 (S.D.N.Y. 1997) (quoting Washton v. United States, 13 F.3d 49, 50 (2d Cir. 1993)), see, e.g., Deutsch v. Commissioner of Internal Revenue, 599 F.2d 44, 46 (2d Cir. 1979) (refusing to consider testimony of taxpayer's accountant to prove actual date of mailing). If the taxpayer does not prove the date of filing, a refund claim is considered to have been filed when the IRS receives it. Weisman, 972 F. Supp. at 188; see also Battle v. IRS, 99-2 U.S. Tax Cas. (CCH) ¶ 50,741 (S.D.N.Y. 1999).
Here, the plaintiff alleges that she mailed the Form 1040X on March 2, 2002, within the three year limitation for tax year 1998. However, records from the IRS reveal that the plaintiff's form was not received until it was mailed to the Criminal Investigation Division of the IRS in an envelope postmarked August 19, 2002. A letter from the plaintiff attached to the form stated that it had been previously sent on time "within a week of the date March 2, 2002." The three year limitation to seek a refund expired on April 15, 2002. Pursuant to 26 U.S.C. 7502, the plaintiff may only prove timely filing by producing either the postmarked envelope, or the registered or certified mail receipt. Here, the plaintiff has failed to produce any proof of service. Consequently, the Court finds that the claim was filed as of the time the IRS received it, which was after the three-year deadline. Because the plaintiff's claim for a refund is untimely, the United States has not consented to suit and the Court lacks jurisdiction over the United States for the alleged refund owed to the plaintiff.
Further, the Court also lacks jurisdiction over the plaintiff's claim that her form was lost in transit by the U.S. Postal Service. The Federal Tort Claims Act (FTCA) provides the framework under which the United States has consented to suits involving common law tort claims. 28 U.S.C. §§ 2671-80. The FTCA specifically exempts "claim[s] arising out of the loss, miscarriage, or negligent transmission of letters or postal matter[s]." 28 U.S.C. § 2680(b). Thus, the plaintiff has not demonstrated that the United States has waived it sovereign immunity regarding this claim. Therefore, the Court lacks jurisdiction over the United States for the alleged loss of the plaintiff's mail.
III. CONCLUSION
For all the foregoing reasons, it is hereby
ORDERED, that the motion by the Government to dismiss the action for lack of subject matter jurisdiction is granted in its entirety; and it is further; ORDERED, that the Clerk of the Court is directed to close the case.
SO ORDERED.