Cobai v. United States of America, Department of the Treasury, Internal Revenue Service ( 2023 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 GREGORY COBAI, Case No. 23-cv-01631-JD 5 Plaintiff, ORDER RE DISMISSAL v. 6 7 UNITED STATES OF AMERICA, DEPARTMENT OF THE TREASURY, 8 INTERNAL REVENUE SERVICE, Defendant. 9 10 11 Pro se plaintiff Gregory Cobai says that defendants the United States of America, the 12 Department of the Treasury, and the Internal Revenue Service (IRS) “cannot prove” that they have 13 the authority to tax him, and on that basis seeks a refund of all federal taxes and penalties paid for 14 tax years dating back to 2007, and all monies collected via wage garnishments. Dkt. No. 1 ¶ 2. 15 See id. ¶¶ 61, 63. The government defendants filed a motion to dismiss pursuant to Federal Rules 16 of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 5. Cobai filed an opposition. Dkt. No. 11. 17 After reviewing the complaint with the liberality warranted for pro se litigants, it is dismissed. 18 The Court lacks subject matter jurisdiction over the refund claim because Cobai did not 19 adequately demonstrate that he filed a proper administrative claim with the IRS prior to filing suit. 20 See 26 U.S.C. § 7422(a). As a result, he “failed to satisfy a necessary condition of the waiver of 21 sovereign immunity under [26 U.S.C.] § 1346(a)(1),” and the Court “is necessarily divested of 22 jurisdiction over the action.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1089 (9th Cir. 23 2007); see also Libitzky v. United States, No. 18-cv-00792-JD, 2021 WL 3471175, at *3 (N.D. 24 Cal. Aug. 6, 2021). Although Cobai filed two refund claims with the IRS, see Dkt. No. 5-1, they 25 do not meet the requirements of section 7422(a), and so the conditions of the United States’ 26 waiver of sovereign immunity are not met. 27 In support of his claim for a refund of all taxes paid for tax years 2006-2012, Cobai stated: 1 they do not have to prove any laws apply.” Dkt. No. 5-1 at ECF p. 4. And further: “Not one IRS 2 agent, manager, or employee has ever produced facts or evidence to support their claims I owe 3 || them, I have an obligation to IRS, or IRS has/had jurisdiction over me.” Id. at ECF p. 16. The 4 || refund claim for 2015, 2020, and 2021, repeats that refrain. See Dkt. No. 5-1 at ECF p. 20. 5 The ostensible refund claims did not “set forth in detail each ground upon which a credit or 6 || refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.” 7 || Boyd v. United States, 762 F.2d 1369, 1371 (9th Cir. 1985) (quoting 26 C.F.R. § 301.6402- 8 2(b)(1)). Cobai demanded that the agency prove its legal authority to tax him, but he did not 9 disclose any reason why he might not be subject to taxation, let alone taxation in the amounts 10 || demanded. In addition, Cobai did not plausibly allege that he made informal statements to those 11 effects. See Libitzky v. United States, No. 18-cv-00792-JD, 2023 WL 2344210, at *8 (N.D. Cal. 12 || Mar. 2, 2023). Because Cobai did not “adequately apprise” the agency of the basis for his claims 5 13 so that it could investigate them, Boyd, 762 F.2d at 1372, “the suit must be dismissed,” id. at 1371 14 (citing L.E. Myers Co. v. United States, 673 F.2d 1366, 1367 (Ct. Cl. 1982)). 3 15 The refund claims are further deficient because they were not “verified by a written a 16 || declaration that [they were] made under the penalties of perjury.” 26 C.F.R. § 301.6402-2(b)(1). 3 17 For the allegations of improper collection, Cobai does not allege a statutory basis for this 18 Court’s jurisdiction. See Dkt. No. 1 763. To the extent he intends to pursue a cause of action 19 || based on 26 U.S.C. § 7433, he again has not plausibly alleged that he filed a proper administrative 20 claim, see 26 C.F.R. § 301.7433-1(e), or that this lawsuit is timely, see id. § 301.7433-1(g). 21 Cobai may file an amended complaint by January 17, 2024, that addresses the Court’s 22 || concerns. A failure to meet this deadline will result in dismissal of the action without prejudice 23 pursuant to Federal Rule of Civil Procedure 41(b). 24 IT IS SO ORDERED. 25 Dated: December 12, 2023 26 27 JAMES MPONATO 28 United Ptates District Judge