- 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 WILLMOT A. TUCKER, CASE NO. C21-467 MJP 11 Plaintiff, ORDER DENYING MOTION TO POSTPONE DISMISSAL 12 v. 13 INTERNAL REVENUE SERVICE, 14 Defendant. 15 This matter is before the Court on Plaintiff’s motion to postpone dismissal. (Dkt. No. 16 40.) Having considered the motion and Defendant’s response, (Dkt. No. 43), the Court DENIES 17 the motion. 18 Plaintiff commenced this action against the Internal Revenue Service seeking $999 19 million for alleged tax “overpayments” he made from 1968 to present and for emotional-distress 20 damages. (Dkt. No. 1 (“Complaint”).) The Court dismissed the Complaint for lack of subject- 21 matter jurisdiction, chiefly because Plaintiff had not first filed an administrative claim for tax 22 refund. (Dkt. No. 34.) See 26 U.S.C. § 7422(a) (administrative claim is predicate to suit); id. at 23 § 6511(a) (claim must be filed within three years from when the return was filed or two years 24 1 from when the tax was paid). Plaintiff moved to reconsider, claiming he had in fact filed a claim 2 for the years 2018–20. (Dkt. No. 39.) The Court denied reconsideration because he provided no 3 supporting documentation for this statement and the letters he allegedly sent as described would 4 not qualify as a notice of claim. (Dkt. No. 42 at 2.) 5 The Court construes Plaintiff’s instant motion to postpone dismissal as a Rule 60(b) 6 motion for relief from the Court’s dismissal order. The Court has discretion to relieve a party 7 from an order on just terms for the following reasons: 8 (1) mistake, inadvertence, surprise, or excusable neglect; 9 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 10 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 11 misconduct by an opposing party; (4) the judgment is void; 12 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier 13 judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 14 (6) any other reason that justifies relief. 15 Fed. R. Civ. P. 60(b). 16 Plaintiff has not established a basis for the Court to delay dismissal of this action. He 17 makes two arguments. First, Plaintiff states that he “already did request a tax refund from the 18 IRS in Seattle, WA and possibly the IRS in Kansas City, MO,” but was ignored. (Dkt. No. 40 at 19 1.) This is familiar territory: as before, Plaintiff provides no evidence to support his contention 20 that he filed the necessary administrative claim for a tax refund before filing the Complaint. 21 There is no “mistake” or “newly discovered evidence” here and certainly nothing that would 22 justify invoking Rule 60. See Engelson v. Burlington N.R. Co., 972 F.2d 1038, 1043–44 (9th 23 24 1 Cir. 1992) (Rule 60(b) requires a showing of exceptional circumstances and is not justified by a 2 party’s ignorance or carelessness). 3 Second, Plaintiff “believes his best chance of receiving his wrongfully withheld federal 4 income taxes refund from 1968 [through] 2021 is to ask expert IRS agent Cassondra L. 5 McCormick to pull up all of the Plaintiff’s tax returns from 1968 [through] 2021).” (Id.) To 6 clarify, Ms. McCormick is not an “IRS agent.” She is a trial attorney at the Department of 7 Justice representing the IRS in this action. Plaintiff appears to argue that, if only he had his tax 8 returns, which are in the exclusive possession of the IRS, he could proceed on his claims. This is 9 a frivolous contention, particularly at this stage. It does not address the requirement that he file a 10 claim for a tax refund with the IRS before commencing this action. 26 U.S.C. § 7422(a). This 11 cannot be done after the fact because jurisdiction must exist when the complaint is filed. Grupo 12 Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004). In addition, Plaintiff can seek 13 his tax returns or tax transcripts directly from the IRS or under the Freedom of Information Act, 14 5 U.S.C. § 552, or the Privacy Act, 5, U.S.C. § 552a. 15 Plaintiff’s motion to postpone dismissal is DENIED. The clerk is ordered to provide 16 copies of this order to all counsel. 17 Dated November 2, 2021. A 18 19 Marsha J. Pechman United States Senior District Judge 20 21 22 23 24
Document Info
Docket Number: 2:21-cv-00467
Filed Date: 11/2/2021
Precedential Status: Precedential
Modified Date: 11/4/2024