Goines v. United States ( 2015 )

ORIGINAL
3Jn tbe Wniteb ~tates QCourt of jfeberal QCiaims
No. 15-184T
Filed October 7, 2015
FILED
) OCT - 7 2015
KEITH GOINES, )
) U.S . COURT OF
Plaintiff, ) FEDERAL CLAIMS
)
v. ) Pro Se; Rule 12(b)(l), Subject-Matter
) Jurisdiction; Tax Refund Claim, 26 U.S.C.
THE UNITED STATES, ) § 6532, 26 U.S.C. § 7422(a); In Forma
) Pauperis.
Defendant. )
``````````````~ )
Keith Goines, Oxon Hill, M.D., plaintiff prose.
Courtney M Hutson, Trial Attorney, Caroline D. Ciraolo, Acting Assistant Attorney
General, David l Pincus, Chief, Tax Division, Court of Federal Claims Section, United States
Department of Justice, Washington, D.C., for defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
Pro se plaintiff, Keith Goines, brought this action to recover federal income taxes that he
alleges are due him in connection with his income tax returns for the years 2012 and 2014. The
government has moved to dismiss the complaint for lack of subject-matter jurisdiction, pursuant
to Rule 12(b)(l) of the Rules of the United States Court of Federal Claims ("RCFC"). In
addition, plaintiff has filed a motion to proceed in this matter in forma pauper is. For the reasons
set forth below, the Court GRANTS defendant's motion to dismiss and GRANTS plaintiffs
motion to proceed in for ma pauper is.
II. FACTUAL AND PROCEDURAL BACKGROUND 1
A. Factual Background
Pro se plaintiff, Keith Goines, commenced this federal income tax refund action on
February 26, 2015. See generally Compl. In his complaint, plaintiff seeks a refund of certain
federal income taxes that he allegedly paid to the Internal Revenue Service ("IRS") during tax
years 2012 and 2014, as well as other monetary relief. Id.; see also Pl. Opp. at 1-2. 2
Specifically, plaintiff alleges that "[t]he IRS is keeping [plaintiffs] 2014 taxes for monies owed
for 2012 no letter of determination was mailed for both years." Compl. at 1. Plaintiff further
alleges the IRS's decision to retain these funds violates both the United States Constitution and
the USA PATRIOT Act. Id.
1. Tax Year 2012
Plaintiff filed his 2012 federal income tax return on or about February 18, 2013. Def.
Ex. 1 at 2 (Plaintiffs 2012 tax return). In his 2012 tax return, plaintiff claimed various child and
dependent care credits, as well as the standard deduction for a head of household filing status.
Def. Mot. at 2; Def. Ex. 1 at 2. Plaintiffs 2012 tax return also claimed a tax refund in the
amount of$5,814.00. Def. Mot. at 3; Def. Ex. 1at2.
On June 24, 2013, the IRS sent a statutory notice of deficiency for the 2012 tax year to
plaintiff, via certified mail, to the mailing address shown on plaintiffs 2012 tax return. Def.
Mot. at 3; Def. Ex. 2 at 2-3. In the notice, the IRS alerted plaintiff to the fact that the IRS had
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The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint ("CompL
at_"); defendant's motion to dismiss ("Def. Mot. at_"); defendant's exhibits attached to the motion to
dismiss ("Def. Ex. at_"); plaintiffs opposition thereto ("Pl. Opp. at_"); and defendant's reply ("Def.
Reply at_"). Except where otherwise noted, the facts recited here are undisputed.
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Plaintiffs complaint is handwritten and difficult to discern. In his response to the government's motion
to dismiss, plaintiff states that he is seeking to recover $16,000.00 from the IRS. Pl. Opp. at 2. It is
unclear how plaintiff arrives at this figure. But, in his response and opposition to defendant's motion to
dismiss, plaintiff claims that he is owed a tax refund in the amount of $7,491.00 for the 2012 tax year and
$5,562.30 for the 2014 tax year. Pl. Opp. at 1. A review of the additional documentation regarding
plaintiffs tax refund claims provided in the exhibits to the government's motion to dismiss also show that
plaintiff requested a tax refund of $5,814.00 for the 2012 tax year and a tax refund of $5,328.00 for the
2014 tax year. Def. Ex. 1at2; Def. Ex. 6 at 2. In addition, plaintiff seeks to recover $3,500.00 for state
income taxes that he alleges he owes to the State of Maryland, as well as $1,000.00 to satisfy a past due
balance owed to H & R Block. Pl Opp. at 2-3.
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determined that plaintiff was not entitled to claim a head of household filing status, or to claim
child and dependent care credits. Id. The notice also provided that plaintiff could contest the
IRS's determination regarding his 2012 tax return by filing a petition with the United States Tax
Court within 90 days of the date of the notice, as prescribed by 26 U.S.C. § 6213(a). Id. The
notice further provided that the amount of the deficiency for plaintiffs 2012 taxes was
$7,491 .00. Id. at 4. And so, the IRS retained plaintiffs 2012 tax refund in the amount of
$5,807.00, resulting in a remaining and outstanding balance for unpaid taxes for the 2012 tax
year in the amount of $1,684.00. Id. at 5.
Plaintiff did not file a petition in Tax Court contesting the IRS's notice of deficiency
within 90-days of the issuance of the notice. Def. Ex. 3 at 1-3; Def. Mot. at 3. And so, on
November 25, 2013, the IRS assessed a tax against plaintiff in the amount of $1,684.00, plus
interest in the amount of $31.29. Id.
Plaintiff filed an amended tax return, Form 1040X, for the 2012 tax year on
November 25, 2013. Def. Ex. 4. In his amended return, plaintiff claimed a tax refund in the
amount of $5,814.00. Id.
On August 4, 2014, plaintiff filed a petition with the Tax Court regarding his 2012 tax
refund claim. See Goines v. United States, No. 18198-14, slip. op. at 1. (T.C. Dec. 30, 2014);
Def. Ex. 5. In that proceeding, plaintiff argued that he did not receive the IRS's notice of
deficiency for his 2012 tax returns. Id. at 2. The Tax Court found, however, that the IRS
properly mailed the notice to plaintiff's last known address and that the notice of deficiency was,
therefore, sufficient. Id. And so, on December 30, 2014, the Tax Court dismissed plaintiffs
petition for lack of jurisdiction upon the grounds that the petition was untimely under 26 U.S.C.
§ 6213(a). Id. at 1-3.
On February 23, 2015, the IRS transferred an overpayment credit in the amount of $81 .00
from the 2014 tax year to partially satisfy plaintiffs outstanding tax liability for the 2012 tax
year. Def. Ex. 3 at 2. And so, according to the IRS, plaintiffs remaining outstanding federal
income tax liability for the 2012 tax year is $1,634.29. Id. at 4.
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2. Tax Year 2014
Plaintiff alleges that he filed his 2014 tax return with the IRS on January 27, 2015. 3 Pl.
Opp. at 2. In his 2014 tax return, plaintiff claimed a tax refund in the amount of$5,328.00. Def.
Ex. 6 at 2 (Plaintiffs 2014 tax return). As discussed above, the IRS transferred an overpayment
credit in the amount of $81.00 from plaintiffs 2014 tax refund to partially satisfy plaintiffs
outstanding tax liability for the 2012 tax year. Def. Ex. 3 at 2; Def. Ex. 7 at 1. The IRS has
taken no further action with respect to plaintiffs 2014 tax return. Id.
3. Tax Year 2015
Plaintiff does not allege that he has filed a tax return for the 2015 tax year, or that he has
filed a tax refund claim for the 2015 tax year. See generally Compl. The IRS has no record of a
tax refund claim by plaintiff for the 2015 tax year. Def. Ex. 8.
B. Procedural Background
On February 26, 2015, plaintiff filed a complaint in this matter seeking to recover a
refund of his federal income taxes for tax years 2012 and 2014 and other monetary relief. See
generally Compl. On that same date, plaintiff also filed a motion to proceed in forma pauperis,
alleging that he lacks the financial means to pay the Court's filing fee. See generally Pl. Mot. to
Proceed In Forma Pauperis.
On May 27, 2015, defendant filed a motion to dismiss plaintiffs complaint for lack of
subject-matter jurisdiction, pursuant to RCFC 12(b)(l). See generally Def. Mot. On June 29,
2015, plaintiff filed a response and opposition to defendant's motion to dismiss. See generally
Pl. Opp. Defendant subsequently filed a reply in support of its motion to dismiss on July 16,
2015; See generally Def. Reply. The matter having been fully briefed, the Court addresses
defendant's pending motion to dismiss.
III. LEGAL ST AND ARDS
A. Pro Se Litigants
Plaintiff is proceeding in this matter pro se. The Court recognizes that parties proceeding
pro se are granted greater leeway than litigants represented by counsel. See Haines v. Kerner,
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The government maintains that plaintiff filed his 2014 tax return on February 16, 2015. Def. Mot. at 4.
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404 U.S. 519, 520-21 (1972) (holding that prose complaints are held to "less stringent standards
than formal pleadings drafted by lawyers"). Nonetheless, "[w]hile a court should be receptive to
pro se plaintiffs and assist them, justice is ill-served when a jurist crosses the line from finder of
fact to advocate." Demes v. United States, 52 Fed. Cl. 365, 369 (2002). And so, while the Court
may excuse ambiguities in plaintiffs complaint, the Court does not excuse the complaint's
failures . See Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).
In addition, this Court has long recognized that "the leniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). For this reason, the prose plaintiff-like
any other plaintiff-must establish the Court's jurisdiction to consider his claim by a
preponderance of the evidence. Riles v. United States, 93 Fed. Cl. 163, 165 (2010).
B. Rule 12(b )(1)
When deciding a motion to dismiss for lack of subject-matter jurisdiction, this Court must
assume that all undisputed facts alleged in the complaint are true and must draw all reasonable
inferences in the non-movant's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC
12(b)(l). Plaintiff bears the burden of establishing subject-matter jurisdiction, and must do so by
a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the subject
matter, it must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).
In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[ es] only that power authorized by Constitution and statute .... " Kokkonen v.
Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994). In particular, the Tucker Act grants
the Court jurisdiction over:
[A]ny claim against the United States founded either upon the Constitution, or
any Act of Congress or any regulation of an 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. § 1491(a)(l) (2012). The Tucker Act, however, is "a jurisdictional statute; it does not
create any substantive right enforceable against the United States for money damages .... [T]he
Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
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substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a
substantive right against the United States under the Tucker Act, a plaintiff must identify and
plead a money-mandating constitutional provision, statute or regulation, or an express or implied
contract with the United States. Cabral v. United States, 317 F. App'x 979, 981 (Fed. Cir.
2008).
C. Jurisdiction In Tax Refund Cases
With respect to tax refund cases, the Tucker Act authorizes the United States Court of
Federal Claims to adjudicate tax refund claims. Ledford v. United States, 297 F.3d 1378, 1382
(Fed. Cir. 2002); see also Ont. Power Generation v. United States, 369 F.3d 1298, 1301 (Fed.
Cir. 2004); Shore v. United States, 9 F.3d 1524, 1525 (Fed. Cir. 1993). But, the Court's
jurisdiction to entertain tax refund cases is limited to those situations where the taxpayer has
complied with the relevant provisions of the Internal Revenue Code. United States v. Clintwood
Elkhorn Mining Co., 553 U.S. 1, 4 (2008). In this regard, the applicable requirements in the
Internal Revenue Code in this matter are set forth in 26 U.S.C. § 7422(a), which provides as
follows:
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 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). And so, pursuant to section 7422(a), this Court does not possess
jurisdiction to consider a claim to recover any internal revenue tax, unless the taxpayer first files
a claim for a tax refund with the IRS pursuant to the agency's regulations. Strategic Haus. Fin.
Corp. of Travis Cnty. v. United States, 608 F.3d 1317, 1324 (Fed. Cir. 2010).
In addition, under 26 U.S.C. § 6532(a), a taxpayer must wait six months from the date on
which the taxpayer filed a tax refund claim with the IRS before filing suit in this Court. See 26
U.S.C. § 6532(a)(l). The only exception to this rule, is that the taxpayer may immediately
commence suit in this Court if the IRS rejects the taxpayer's tax refund claim. Id. And so, the
Court must dismiss a complaint seeking a tax refund, if the complaint is filed less than six
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months after the taxpayer filed a tax refund claim with the IRS, unless the IRS already rejected
the claim. Dumont v. United States, 345 F. App'x 586, 590 (Fed. Cir. 2009).
Finally, a plaintiff must also abide by the "full payment rule," which requires that a
taxpayer fully pay the taxes at issue prior to bringing a suit for a tax refund in this Court.
Flora v. United States, 357 U.S. 63, 75 (1958); accord Shore, 9 F.3d at 1527 ("The Flora full
payment rule requires that taxpayers prepay the tax principal before the Court of Federal Claims
will have subject matter jurisdiction over their tax refund action .... "). And so, the Court does
not possess jurisdiction to consider a tax refund claim if a tax deficiency exists. Id.
IV. DISCUSSION
A. The Court Does Not Possess Jurisdiction To Consider Plaintiff's Claim
The government has moved to dismiss plaintiffs complaint for four reasons: First, the
government argues that the Court lacks jurisdiction over plaintiffs 2012 tax refund claim,
because plaintiff has not satisfied his tax liability for the 2012 tax year. Def. Mot. at 6-7.
Second, the government argues that plaintiff's tax refund claim for 2014 is also jurisdictionally
barred, because plaintiff filed this claim less than six months after filing his 2014 tax return.
Id. at 7-8. The government further contends that plaintiffs tax refund claim for the 2015 tax
year is jurisdictionally barred, because plaintiff did not file a tax refund claim with the IRS
before bringing this action. Id. at 8. Lastly, the government contends that the Court also lacks
subject-matter jurisdiction to consider the remainder of plaintiff's claims for monetary relief,
because plaintiff has not identified a money-mandating statute or other source of law to invoke
the Court's jurisdiction with respect to these claims. Id. at 9.
For the reasons discussed below, the Court agrees. And so, the Court must dismiss
plaintiffs complaint for lack of subject-matter jurisdiction. RCFC 12(b)(l).
1. Plaintiff's 2012 Tax Refund Claim Is Jurisdictionally Barred
As an initial matter, plaintiff's tax refund claim for the 2012 tax year is jurisdictionally
barred because he has not satisfied the outstanding tax liability for that tax year. It is well
established that a taxpayer must pay all outstanding tax liabilities for a particular tax year before
bringing a claim to recover a tax refund. Flora, 357 U.S. at 72-73. A Certificate of Assessments
and Payments is sufficient evidence to indicate whether a plaintiff has satisfied this jurisdictional
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requirement. Rocovich v. United States, 933 F.2d 991, 994 (Fed. Cir. 1991). And so, the Court
does not have jurisdiction over a tax refund claim if a Certificate of Assessments and Payments
shows that full payment of the assessed tax has not been made by the date plaintiff filed the
complaint. Id.
In this case, the Certificate of Assessments and Payments for plaintiff's 2012 tax returns
shows that plaintiff has an outstanding balance of $1,634.29 in taxes owed for the 2012 tax year.
Def. Ex. 3 at 4. Plaintiff does not dispute that he has not satisfied this outstanding balance. See
generally Comp!.; Pl. Opp. And so, plaintiff has not established that the Court has jurisdiction to
consider his 2012 tax refund claim. 4 Flora, 357 U.S. at 72-73.
2. Plaintiff's 2014 Tax Refund Claim Is Jurisdictionally Barred
The Court also does not possess jurisdiction to consider plaintiff's tax refund claim for
the 2014 tax year because this claim is premature. In this regard, title 26, United States Code,
section 6532(a)(l) provides that a taxpayer cannot bring a tax refund suit in this Court less than
six months after the date on which the taxpayer filed a tax refund claim with the IRS. 26 U.S.C.
§ 6532(a)(l) (2012). This statutory six-month waiting period is only waived ifthe IRS rejects
the taxpayer's tax refund claim, in which case the taxpayer may commence suit in this Court
without waiting the full six months. Id.; Cherbanaeff v. United States, 77 Fed. Cl. 490, 498
(2007), aff'd, 300 F. App'x 933 (Fed. Cir. 2008). And so, this Court does not have jurisdiction
to consider a tax refund claim that has been filed with the IRS less than six months before the
filing of the complaint, unless the IRS has previously rendered a decision on that claim.
Pacetti v. United States, 50 Fed. Cl. 239, 249-50 (2001).
In this matter, plaintiff alleges that he filed his 2014 tax return on January 27, 2015. Pl.
Opp. at 2. For purposes of resolving the government's motion to dismiss, the Court accepts that
plaintiff's 2014 tax return also serves as his claim for a tax refund for the 2014 tax year.
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It also appears that the Court lacks jurisdiction to consider plaintiffs 2012 tax refund claim because
plaintiff did not file a tax refund claim with the IRS, before commencing this action. 26 U.S.C. § 7422;
Strategic Haus., 608 F.3d at 1324. Plaintiffs complaint does not allege that plaintiff filed a tax refund
claim with the IRS for the 2012 tax year. See generally Comp!. Rather, it appears that plaintiff is relying
upon his 2012 amended tax return to serve as his tax refund claim for the 2012 tax year. See generally
Comp!. For the purpose ofresolving the government' motion to dismiss, the Court deems plaintiffs 2012
amended tax return to be plaintiffs tax refund claim for the 2012 tax year.
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Plaintiff commenced this action on February 26, 2015, less than six months after filing his 2014
tax return. See generally Compl.; 26 U.S.C. § 6532(a)(l). In addition, the IRS has not rendered
a decision on plaintiffs claim for a tax refund for the 2014 tax year. Def. Mot. at 8; Def. Ex. 7 at
1. Given this, plaintiff has filed his 2014 tax refund claim too soon. And so, the Court does not
possess jurisdiction to consider this claim. 5 26 U.S.C. § 6532(a)(l); Pacetti, 50 Fed. Cl. at
249-50.
3. Plaintiff's 2015 Tax Refund Claim Is Jurisdictionally Barred
Plaintiffs 2015 tax refund claim is also jurisdictionally precluded. As established above,
a taxpayer must file a tax refund claim with the IRS before bringing a claim for a tax refund in
this Court. 26 U.S.C. § 7422(a). In this case, it is without dispute that plaintiff has not yet filed
his tax return for the 2015 tax year. See generally Compl.; Def. Ex. 8. And so, plaintiff could
not have filed a tax refund claim for the 2015 tax year. Def. Mot. at 8. Given this, plaintiff has
not satisfied the requirement to file a tax refund claim with the IRS before commencing this
action. 26 U.S.C. § 7422(a). And so, the Court does not possess jurisdiction to consider
plaintiffs tax refund claim.
4. The Court Also Does Not Have Jurisdiction To Consider Plaintiff's
Remaining Claims
To the extent that plaintiff is seeking to recover funds from the government that have not
been requested in either his 2012 or 2014 tax returns, his claims are also jurisdictionally barred
under the Tucker Act. 6 In his opposition to the government's motion to dismiss, plaintiff alleges
that he is seeking $3,500.00 for taxes owed to the State of Maryland. Pl. Opp. at 3. In addition,
plaintiff seeks $1,000.00 for funds that he apparently owes to H & R Block for tax services. Id.
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Defendant alleges that plaintiff filed his 2014 tax return on February 16, 2015, a date that is also less
than six months before plaintiff commenced this action. Def. Mot. at 4. In addition, it appears that
plaintiff has not filed a tax refund claim with the IRS for the 2014 tax year. See generally Comp!. As
discussed above, filing such a claim is a jurisdictional prerequisite for bringing a tax refund claim in this
Court. 26 U.S.C. § 7422(a). For the purpose of resolving the government' motion to dismiss, the Court
deems plaintiffs 2014 tax return to be plaintiffs tax refund claim for the 2014 tax year.
6
The government argues in its motion to dismiss that plaintiffs tax refund claims, as well as plaintiffs
claims for other monetary relief are jurisdictionally barred because plaintiff has not pointed to a money-
mandating source of law to support these claims. Def. Mot. at 8-9. But, the government acknowledges
that plaintiff may rely upon 26 U.S.C. § 7422 to bring his tax refund claim, if the Court deems plaintiffs
2012 and 2014 tax returns to be plaintiffs tax refund claims for these tax years. Def. Mot. at 1-2, 9.
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Plaintiff also seeks to recover funds for federal income taxes that he has not yet paid for the 2015
tax year. Pl. Comp!. at 1.
Plaintiff points to no money-mandating statute or other source of law to confer
jurisdiction on this Court to consider these claims. See generally Comp!.; Pl. Opp. Rather,
plaintiff cites generally to the United States Constitution and to the USA PATRIOT Act. But,
neither of these legal provisions provide the Court with jurisdiction to entertain plaintiff's claims.
In fact, it is well established that a citation to the Constitution, without any reference to a
particular money-mandating provision in the Constitution, is insufficient to establish this Court's
jurisdiction. Fisher, 402 F.3d at 1173; Russell v. United States, 78 Fed. Cl. 281, 285 (2007)
("plaintiff must establish more than the mere existence of a statute or constitutional provision to
bring himself within the jurisdiction of this court"). In addition, the USA PATRIOT Act is not
money-mandating statute that confers jurisdiction to this Court and that law does not provide the
Court with jurisdiction to consider tax refund claims. See generally 18 U.S.C. § 2712 (provision
of the USA PA TRI OT Act dealing with recovery for violations). And so, plaintiff simply fails to
meet his burden to show that the Court has jurisdiction to consider his claims for other monetary
relief. Minehan, 75 Fed. Cl. at 253.
B. Plaintifrs Motion For Leave To Proceed In Forma Pauperis Satisfies The
Statutory Requirements
Lastly, plaintiff has filed a motion to proceed informa pauperis in which he requests a
waiver of the Court's filing fee because he lacks the financial resources to pay the fee. See
generally Pl. Mot. to Proceed In Forma Pauperis. This Court may authorize commencement of
a suit without prepayment of fees when a person submits an affidavit including a statement of all
assets, a declaration that he or she is unable to pay the fees, and a statement of the nature of the
action and a belief that he or she is entitled to redress. See 28 U.S.C. § 1951 (a); see also
28 U.S.C. § 2503(d). Due to the Court's summary disposition of this case and plaintiff's prose
status, the Court finds that plaintiff satisfies the requirements to proceed in forma pauperis for
the purpose ofresolving the government's motion to dismiss. And so, the Court grants
plaintiff's motion to proceed informa pauperis for the limited purpose ofresolving the
government's motion to dismiss.
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V. CONCLUSION
In sum, the facts in this case show that plaintiff has simply not met his burden to show
that the Court possesses jurisdiction to consider his tax refund and other monetary claims. The
Court does not possess jurisdiction to consider plaintiffs 2012 tax refund claim, because plaintiff
has not satisfied his tax liability for the 2012 tax year. In addition, the Court cannot entertain
plaintiffs 2014 tax refund claim, because plaintiff filed this claim less than six months after
filing his 2014 tax return. Furthermore, the Court does not possess jurisdiction to consider
plaintiffs 2015 tax refund claim, because plaintiff has not yet filed a claim for a tax refund for
the 2015 tax year with the IRS. The remainder of plaintiffs claims for monetary relief are also
jurisdictionally barred, because plaintiff has not identified a money-mandating statute or other
source of law to invoke the Court's jurisdiction with respect to these claims.
And so, for the foregoing reasons, the Court:
(1) GRANTS the government's motion to dismiss; and
(2) GRANTS plaintiffs motion to proceed informa pauperis.
The Clerk's Office is directed to ENTER final judgment in favor of defendant,
DISMISSING the complaint. No costs.
IT IS SO ORDERED.
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