Zolman ( 2015 )

ORIGINAL FILED
In the United States Court of Federal Claims NOV 12 2015
U.S. COURT OF
FEDERAL CLAIMS
No. 15-1116T
(Filed: November 12, 2015)
NOT FOR PUBLICATION
)
CARY A. ZOLMAN, )
)
Pro Se Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
ORDER OF DISMISSAL
The court is in receipt of the complaint filed on October 5, 2015 by pro se plaintiff
Cary Zolman. 1 Mr. Zolman asserts that he is entitled to $894,286.59 plus legal fees as
damages for alleged fraud, felony theft, and due process violations arising from the
Internal Revenue Service’s (“IRS”) collection of taxes. Mr. Zolman also asserts that he is
a “legal non tax payer (American National).” Compl. 1.
A plaintiff has the burden of establishing the court’s subject matter jurisdiction by
a preponderance of the evidence. See, e.g., Estes Express Lines v. United States, 739
F.3d 689, 692 (Fed. Cir. 2014) (citing Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988)). Although a pro se plaintiff is held to less stringent
pleading standards, the plaintiff must still demonstrate that the court has jurisdiction to
hear their claim. See, e.g., Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir.
2014) (citation omitted).
“[T]his court’s jurisdiction under the Internal Revenue Code is generally limited to
the adjudication of tax refund suits.” Dawveed v. United States, No. 14-247, 2014 WL
1499145, at *1 (Fed. Cl. Apr. 15, 2014) (citing 26 U.S.C. § 7422); see also Cooper v.
1
Mr. Zolman also filed a motion to proceed in forma pauperis. Mr. Zolman’s motion to proceed
in forma pauperis is GRANTED for the limited purpose of filing the complaint.
United States, 123 Fed. cl.226 (2015) ("The [Intemal Revenue code] does not authorize
taxpayers to challenge the IRS's imposition of a lery in the court of Federal claims.,,
(citing 26 U.S.C. g$ 6330-31). In a tax retund suit, ,.the taxpayer must first (t) pay the
full amount of taxes in dispute, . . . (2) file a timely claim for refund with the IRS, 26
u.s.c. $ 7422, and (3) file a timely complaint subsequent to the submission of the claim
for a refund, 26 U.S.C. $ 6532." Rogers v. United States, 66 F. App,x 195, 198 (Fed.
Cir. 2003) (per curiam). Mr. Zolman's filings make clear that he did not file a timely
claim for a refund with the IRS. See Compl. Ex. 4 (stamped ,,Exhibit B,,). Therefore,
Mr. Zolman's complaint fails to meet the jurisdictional prerequisites for a tax refund
claim. See also Diamond v. United States, 603 F. App'x947,950 (Fed. Cir. Feb. 10,
2015) (per curiam) (citing Chicago Milwaukee Com. y-UuiIed States, 40 F.3d 373,31-4
(Fed. Cir. 1994)).
Mr. Zolman's other claims must also be dismissed for lack ofjurisdiction. The
Tucker Act, 28 U.S.C. g 1491, grants this court 'Jurisdiction to renderjudgment upon any
claim against the United States founded either upon the Constitution, or any Act oI'
Congress or any regulation ofan executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort." 28 U.S.C. g 1a91(a)(1) (emphasis added). However, the Tucker Act
does not create substantive rights; it only waives sovereign immunity for claims premised
on other sources of law that "can fairly be interpreted as mandating compensation by the
Federal Govemment for the damages sustained." Jan's Helicopter Serv., Inc. v. FAA,
525 F .3d 1299, 1306 (Fed. Cir. 2008) (quoting United States v. Mitchell , 463 U.S. 206,
216-17 (1983)). Therefore, this court lacks jurisdiction to hear Mr. Zolman's criminal or
tort claims, In addition, claims for damages resulting from unauthorized collection
actions or failure to release a lien must be filed in a federal district court. See 26 U.S.C.
$$ 7432-33; Ledford v. United States,297 F.3d1378, 1382 (Fed. Cir. 2002) (per curiam).
Finally, this court lacks jurisdiction to hear Mr. Zolman's due process claim because
"[t]he law is well settled that the Due Process clauses ofboth the Fifth and Fourteenth
Amendments do not mandate the payment of money and thus do not provide a cause of
action under the Tucker Act." Smith v. United States, 709 F.3d I I 14, 1116 (Fed. Cir.
(2013) (citing LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995)).
Therefore, because this court lacks iurisdiction, Mr. Zolman's comolaint is
DISMISSED. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
FIRESTONE
Judge