Minuti v. Internal Revenue Service

BLD-004 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3081
___________
RICHARD JOHN MINUTI,
Appellant
v.
INTERNAL REVENUE SERVICE;
TAXPAYER ADVOCATE OFFICE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:12-cv-01222)
District Judge: Honorable Thomas N. O’Neill, Jr.
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 4, 2012
Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges.
(Filed: October 19, 2012)
_________
OPINION OF THE COURT
_________
PER CURIAM.
Richard John Minuti, proceeding pro se, appeals from an order of the United
States District Court for the Eastern District of Pennsylvania granting the Internal
Revenue Service’s (“IRS”) motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) and dismissing his complaint without prejudice. Because this appeal does not
present a substantial question, we will summarily affirm the District Court’s order. See
3d Cir. L.A.R 27.4; I.O.P. 10.6.
Because we primarily write for the parties, we need only recite the facts necessary
for our discussion. In his submissions to the District Court, Minuti alleges that he is due
tax refunds for the years 2004 and 2005 because he filed amended tax forms for those
years but has not received them because the IRS has kept these refunds. Minuti states
that his constitutional rights have been violated by the IRS and the Taxpayer Assistance
Office (“TAO”) and that he has suffered mental anguish and depression because of these
alleged violations. As relief, he asks for the two tax refunds to which he argues he is
entitled.
In March 2012, Minuti filed this action against the IRS and the TAO, and the
District Court granted him leave to proceed in forma pauperis. The IRS filed a motion to
dismiss for lack of subject matter jurisdiction on May 25, 2012, which Minuti responded
to on July 16, 2012. On July 16, 2012, the District Court entered an order granting the
IRS’s motion to dismiss and dismissing Minuti’s complaint without prejudice to renewal
when he could allege facts sufficient to invoke the District Court’s subject matter
jurisdiction. Minuti then timely filed this appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise
plenary review over the District Court’s dismissal order. See Landsman & Funk PC v.
Skinder-Strauss Assocs., 640 F.3d 72, 75 (3d Cir. 2011). A motion made pursuant to
Rule 12(b)(1) “may be treated as either a facial or factual challenge to the court’s subject
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matter jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000). A court reviewing a facial attack “must only consider the allegations of the
complaint and documents referenced therein and attached thereto, in the light most
favorable to the plaintiff.” Id.; see also Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d
181, 188 (3d Cir. 2006) (internal quotation marks and citation omitted) (this Court
reviews “whether the allegations on the face of the complaint, taken as true, allege facts
sufficient to invoke the jurisdiction of the district court”). We may summarily affirm if
the appeal does not present a substantial question, and may do so on any basis supported
by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
The District Court properly dismissed Minuti’s complaint without prejudice. A
taxpayer filing suit to recover a tax refund must submit a claim for the refund to the IRS
and then wait six months to file suit in federal court, unless the IRS renders a decision on
the claim before that six-month period expires. 26 U.S.C. §§ 6532(a)(1), 7422(a); 26
C.F.R. § 301.6402-3(a)(1-2, 5) (noting that an amended tax return satisfies the
requirement for submitting a claim); see also Becton Dickinson and Co. v.
Wolckenhauer, 215 F.3d 340, 352 (3d Cir. 2000) (noting that the limitation period set
forth in 26 U.S.C. § 6532(a) is jurisdictional). Therefore, to invoke the federal court’s
jurisdiction within that six-month time period, the taxpayer must show that he submitted
the refund claim and that the IRS rendered a decision with respect to that claim. See
Thomas v. United States, 56 Fed. Cl. 112, 120 (2003) (dismissing a premature tax refund
suit for lack of subject matter jurisdiction).
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Here, Minuti alleged that he filed his amended tax return to claim his refund in
December 2011, but he filed his complaint on March 23, 2012, within the six-month time
period. His complaint did not allege that the IRS had already decided his claim; rather,
he explicitly stated that “three months later, the IRS has not contacted me about this.”
(Minuti v. IRS, E.D. Pa. Civ. No. 2:12-cv-01222, Docket # 5 at 4.) In his response to the
IRS’s motion to dismiss, Minuti claimed that the IRS had already sent him two separate
notices confirming that he would receive two refunds; however, he neither attached
copies of these notices to his response nor asked the District Court for leave to file an
amended complaint. Instead, he only provided a letter from his attorney showing that he
was entitled to a refund for 2004. Therefore, Minuti failed to satisfy the jurisdictional
requirement of 26 U.S.C. § 6532(a)(1), and the District Court properly dismissed his
complaint without prejudice.1
1
In his notice of appeal, his response to this Court’s summary action letter, and his reply
to the IRS’s response in support of summary action, Minuti argues that the District Court
failed to consider his claims regarding the TAO and his alleged violations of his civil
rights. As an office within the IRS, the TAO enjoys the same immunities given to the
federal government under the Constitution and federal law. Beneficial Consumer
Discount Co. v. Poltonowicz, 47 F.3d 91, 94 (3d Cir. 1995) (recognizing that the IRS and
its employees are entitled to sovereign immunity). Individual federal employees may be
held liable for constitutional violations. See Bivens v. Six Unknown Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388, 389 (1971). To the extent that Minuti’s complaint
can be construed as a Bivens claim, the “remedies provided by Congress, particularly the
right to sue the government for a refund of taxes improperly collected, foreclose a
damage action under Bivens.” Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir. 1990) (citing
Cameron v. IRS, 773 F.2d 126, 129 (7th Cir. 1985); Baddour, Inc. v. United States, 802
F.2d 801, 807-08 (5th Cir. 1986)) (noting that the collection of taxes, without more, does
not give rise to a constitutional right); see also Shreiber v. Mastrogiovanni, 214 F.3d 148,
152 (3d Cir. 2000) (“[A] Bivens action should not be inferred to permit suits against IRS
agents accused of violating a taxpayer’s constitutional rights in the course of making a
tax assessment.”). Minuti’s complaint also alleges that he has experienced increased
4
For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
mental anguish, depression, and anxiety regarding his tax refunds. To the extent that
Minuti’s complaint can be construed as raising a claim under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-80, this statute specifically states that the government has
not waived its sovereign immunity for claims arising out of the assessment and collection
of taxes, 28 U.S.C. § 2680(c); see also Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir.
1981) (determining that § 2680(c) “is broad enough to encompass any activities of an IRS
agent even remotely related to his or her official duties”).
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