Opinion
NO. 03-CV-3436
February 23, 2004
ORDER
AND NOW, this 23rd day of February, 2004, upon consideration of the Internal Revenue Service's Motion to Dismiss [Doc. No. 3], and Plaintiffs John B. Fitzpatrick and J.B. Fitzpatrick, Inc.'s response thereto, after oral argument thereon, it is hereby ORDERED and DECREED that the Motion is GRANTED. Plaintiffs' Complaint is hereby DISMISSED WITHOUT PREJUDICE. Nothing in this Order shall be construed to preclude Plaintiffs from satisfying the tax lien pursuant to 26 U.S.C. § 6325 and thereafter seeking a refund in accordance with 26 U.S.C. § 6511 and 7422. See Brennan v. Southwest Airlines Co., 134 F.3d 1405, 1409 (9th Cir. 1998) (holding that exclusive remedy for the erroneous or illegal collection of taxes is a suit for refund).
Collection proceedings have not been commenced so Plaintiffs' reliance upon Flynn v. United States, 786 F.2d 586 (3d Cir. 1986) due to the Internal Revenue Service's alleged failure to provide a deficiency notice is misplaced. Moreover, given the Government's representation that the unpaid tax liabilities of J.B. Fitzpatrick, Inc. have been classified as uncollectible, see attached correspondence, Plaintiffs clearly cannot establish any irreparable injury. Accordingly, Plaintiffs' request for injunctive relief is denied.
While 28 U.S.C. § 1346(a) provides the district courts with jurisdiction for claims against the United States for any tax alleged to have been erroneously or illegally assessed or collected, 26 U.S.C. § 7422(a) provides that no lawsuit may be maintained "until a claim for refund has been duly filed with the Secretary." Moreover, the prepayment of a tax deficiency is a prerequisite to the maintenance of a tax refund action. See Flora v. United States, 357 U.S. 63 (1958).
The Clerk is directed to close this case for statistical purposes.