Opinion
Case No. 5:04-CV-211.
March 31, 2005
OPINION
This matter is before the Court on Defendant United States of America's Motion to Dismiss and Plaintiff's Response/Motion to Proceed. Plaintiff brings this suit to "recover overpayment of federal income taxes for 2002." (Compl. at 1.)
I. Standard of Review
Defendant seeks dismissal of Plaintiff's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) provides that the Court may dismiss a complaint for lack of jurisdiction. The party seeking to invoke the Court's jurisdiction bears the burden of establishing subject matter jurisdiction of the federal courts. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993); Reynolds v. Army Air Force Exchange Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Generally, when bringing motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), a moving party may assert one of two arguments: either "[a] facial attack, which challenges the sufficiency of the opposing party's jurisdictional allegations and in which all well-pleaded factual allegations in the complaint are taken as true; or a factual attack, which challenges the actual fact of subject matter jurisdiction . . ." Treglowne v. United States, 2000 WL 264677, *3 (E.D. Mich. 2000) (unpublished); see also Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 324 (6th Cir. 1990); Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558-59 (9th Cir. 1987).
II. Analysis
Defendant's Motion rests on the grounds that this Court lacks jurisdiction because Defendant has not waived sovereign immunity. (Def.'s Mot. at 1.) "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983); see also Lehman v. Nakshian, 453 U.S. 156, 160 (1981); United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Testan, 424 U.S. 392, 399 (1976); Honda v. Clark, 386 U.S. 484, 501 (1967); United States v. Sherwood, 312 U.S. 584 (1941); United States v. Shaw, 309 U.S. 495, 500-01 (1940). Furthermore, a waiver of sovereign immunity cannot be found in mere implication, but must be unequivocally expressed in an Act of Congress. Mitchell, 445 U.S. at 538; United States v. King, 395 U.S. 1, 4 (1969). "Where Congress has provided for a specific waiver of sovereign immunity, the limitations and conditions upon which the United States consents to be sued must be strictly construed and rigorously observed, and exceptions thereto are not to be implied." Rochefort v. Gibbs, 696 F. Supp. 1151, 1152 (W.D. Mich. 1988) (citing Lehman, 453 U.S. at 161; Soriano v. United States, 352 U.S. 270, 276 (1957)).
In Flora v. United States, 357 U.S. 63 (1958), the Supreme Court held that under 28 U.S.C. § 1346(a)(1), which grants jurisdiction to district courts, and the claim for refund statute, 26 U.S.C. § 7422, a taxpayer must meet two requirements prior to filing a suit for refund in Federal District Court. The taxpayer must: (1) file a claim for refund; and (2) pay the full amount of the tax deficiency. Id.; see also Martin v. C.I.R., 753 F.2d 1358, 1360 (6th Cir. 1985). The Supreme Court further held that a taxpayer may litigate his claim in the Tax Court of the United States if he is unable to pay the full amount of the deficiency. Id. Plaintiff fails to fulfill either requirement.
Section 7422 of the Internal Revenue Code sets forth the United States's waiver of sovereign immunity with respect to tax refund suits. Therefore, the requirements of this section must be satisfied before this Court has jurisdiction over such a suit. Treglowne, 2000 WL 264677 at *3-4. In relevant part, § 7422 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 such 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(a).
Plaintiff asserts that he did file such a claim for refund on July 28, 2003. (Pl.'s Resp. at 2.) Presumably, Plaintiff refers to his Form 1040 which was filed on that date. (Compl., Ex. 1.) On this form, Plaintiff lists the amount of taxable income as $0.00 and the amount of refund as $2,331.00, which is the amount of Federal Income Tax withheld by his employer. Id. The applicable Treasury regulations provide in relevant part, that:
The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof. The statement of the grounds and facts must be verified by a written declaration that it is made under the penalties of perjury. A claim which does not comply with this paragraph will not be considered for any purpose as a claim for refund or credit. 26 C.F.R. §§ 301.6402-2(b)(1). The Sixth Circuit Court of Appeals considered this issue in the context of a criminal tax prosecution for failure to file an income tax return. See United States v. Mosel, 738 F.2d 157 (6th Cir. 1984) (per curiam). As in this case, Mosel filed a Form 1040 which indicated no income and requested a refund from the amount withheld from his wages. Id. at 158. Mosel contended that he had filed an income tax return and, therefore, could not be held criminally liable for failure to do so. Id. The Sixth Circuit rejected this argument and adopted the Seventh Circuit's analysis set forth in United States v. Moore, 627 F.2d 830 (7th Cir. 1980), citing:
. . . [I]t is not enough for a form to contain some income information; there must also be an honest and reasonable intent to supply the information required by the tax code. . . . In our self-reporting tax system the government should not be forced to accept as a return a document which plainly is not intended to give the required information.Id. at 835; see also Mosel, 738 F.2d at 158. Therefore, this Court finds that the Form 1040 submitted by Plaintiff does not satisfy the requirements of § 7422.
Additionally, Plaintiff submits no evidence which indicates he has paid the full amount of the tax deficiency. Martin, 753 F.2d at 1360. In fact, the evidence submitted by Plaintiff indicates that he has not paid that amount. (Compl., Exs. 2 3.)
III. Conclusion
For the above reasons, Defendant's Motion to Dismiss will be granted and Plaintiff's Motion to Proceed will be denied.
A Judgment in accordance with this Opinion shall issue.