Reyes , 652 F.2d 70 ( 1981 )

Plaintiff, pro se, filed a petition in this court on October 6, 1980, for refund of income tax for 1977 and interest thereon totaling $333.53, which amount she paid on May 12, 1980. Plaintiff contends that she is a victim of possible discrimination for failure of the Internal Revenue Service to allow her claims for dependency exemptions for her parents on a head-of-household basis. Defendant moves to dismiss the petition on the ground that plaintiff has not met the jurisdictional requirement of filing with the Internal Revenue Service an administrative claim for refund pursuant to Internal Revenue Code (I.R.C.) § 7422, which claim it appears she is entitled to file on or before May 12, 1982, that being within the 2-year period after payment provided for in I.R.C.§ 6511(a).

The provisions of I.R.C. § 7422(a) clearly support defendant:

Ño 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 or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

Unless such a claim is filed, we have no jurisdiction. See also Treas. Reg. § 301.6402-2.

it is therefore ordered, without hearing oral argument, that defendant’s motion to dismiss is granted and the petition is dismissed for lack of jurisdiction.