Smith v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID LEE SMITH,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2012-5074
__________________________
Appeal from the United States Court of Federal
Claims in case no. 10-CV-218, Judge Edward J. Damich.
__________________________
Decided: August 10, 2012
__________________________
DAVID LEE SMITH, of Denver, Colorado, pro se.
CURTIS C. PETT, Attorney, Tax Division, United States
Department of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were KATHRYN KENEALLY,
Assistant Attorney General, and TERESA E. MCLAUGHLIN,
Attorney. Of counsel was JENNIFER DOVER SPRIGGS.
__________________________
Before LOURIE, REYNA, and WALLACH, Circuit Judges.
SMITH v. US 2
PER CURIAM.
Plaintiff-Appellant pro se, David Lee Smith, chal-
lenges the dismissal of his case for lack of subject matter
jurisdiction. Mr. Smith seeks to recover federal taxes
alleged to have been erroneously or illegally assessed or
collected. Upon careful consideration and for the reasons
outlined below, we affirm.
I.
This case involves a long-standing tax dispute be-
tween Mr. Smith and the Internal Revenue Service
(“IRS”). Because the background of this case is exceed-
ingly complex and the tax years at issue herein have been
the subject of prior disputes, only portions relevant to our
holding are recited herein.
Mr. Smith and Ms. Hook, who are both attorneys,
filed petitions in the Tax Court seeking redetermination
of income tax deficiencies and additions to tax asserted
against them for tax years 1992 to 1996 arising from joint
returns filed for those years. 1 The Tax Court dismissed
the suit for failure to prosecute and entered judgment
against them, upholding the deficiencies and penalties as
determined by the IRS. Mr. Smith moved the Tax Court
for leave to file an untimely motion to vacate its decision,
which the Tax Court denied. Mr. Smith appealed to the
Tenth Circuit, which affirmed the Tax Court and imposed
$6,000 in sanctions on Mr. Smith and Ms. Hook for filing
a frivolous appeal.
Mr. Smith and Ms. Hook next filed a petition for relief
under Chapter 11 of the Bankruptcy Code and com-
1 Mr. Smith and Ms. Hook remain married but have
been separated since 1998. Mr. Smith and Ms. Hook filed
joint income tax returns for the relevant time periods
discussed herein.
3 SMITH v. US
menced an adversary proceeding seeking to, inter alia,
relitigate their tax liabilities for tax years 1992 to 1998.
The Bankruptcy Court dismissed the adversary proceed-
ing, and the District Court affirmed. Mr. Smith and Ms.
Hook appealed this decision to the Tenth Circuit. Ms.
Hook voluntarily dismissed her appeal, and Mr. Smith’s
appeal was dismissed due to his failure to pay the sanc-
tions imposed upon him in the prior appeal. Ms. Hook
ultimately settled with the IRS, but Mr. Smith refused to
settle, seeking, inter alia, to relitigate his tax liabilities
for tax years 1992 to 1996 and claiming entitlement to
“innocent spouse” relief from joint and several liability
under § 6015.
In 2007, Mr. Smith and Ms. Hook filed a petition in
the Tax Court challenging income tax deficiencies and
penalties for tax years 2001 to 2005. They also filed a
joint motion for a refund of amounts that the IRS had
collected since the filing of their petition on September 7,
2007, on the ground that those collections violated §
6213(a). 2 The IRS submitted documents indicating that
no amounts had been collected with respect to the defi-
ciencies for tax years 2001 to 2005 that were subject of
the pending action.
On April 9, 2010, Mr. Smith filed the instant refund
suit in the Court of Federal Claims, seeking to recover
taxes alleged to have been erroneously assessed or col-
lected for tax years 1992 to 1996 and 2000 to 2006. 3 At a
2 Section 6213(a) of the Internal Revenue Code pro-
hibits the collection of a deficiency while a Tax Court
petition for redetermination of the deficiency is pending.
3 Mr. Smith claimed that this filing divested the
Tax Court of jurisdiction pursuant to § 6015(e)(3). The
Tax Court rejected this argument, characterizing it as a
delay tactic, and the Tenth Circuit affirmed.
SMITH v. US 4
preliminary status conference, the government informed
the Court of Federal Claims of its intention to file a
motion to dismiss for lack of jurisdiction. Mr. Smith
asserted that discovery would be required before the
motion could be decided. The Court of Federal Claims
informed Mr. Smith that if he thought the motion raised
issues that necessitated discovery, he should clearly
identify those issues in his response. The government
moved to dismiss Mr. Smith’s suit for lack of subject
matter jurisdiction on February 3, 2011, and the Court of
Federal Claims granted the motion because, inter alia, it
found that Mr. Smith had already challenged the defi-
ciencies for tax years 1992 to 1996 and 2001 to 2005 in
the Tax Court and had not paid the full amount of the
deficiency relating to tax year 2006 before filing suit, as is
required. It denied Mr. Smith’s motion to amend or
supplement his amended complaint to include the proper
jurisdictional statement and/or to transfer the case to the
United States District Court for the District of Colorado
pursuant to 28 U.S.C. § 1631. It also denied his motion
for reconsideration of the Court’s earlier decision denying
his discovery request. Mr. Smith moved for relief under
Court of Federal Claims Rule (“RCFC”) 60(b), but the
Court of Federal Claims denied the motion.
This appeal followed. The sum and substance of Mr.
Smith’s appeal is his contention that the Court of Federal
Claims erred by granting the government’s motion to
dismiss, denying his request to amend or supplement his
complaint and/or to transfer his case, and denying his
motion for relief under RCFC 60(b). We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
II.
This Court reviews de novo a decision by the Court of
Federal Claims to dismiss for lack of subject matter
5 SMITH v. US
jurisdiction. See Schell v. United States, 589 F.3d 1378,
1381 (Fed. Cir. 2009). As the plaintiff, Mr. Smith bears
the burden of establishing jurisdiction by preponderant
evidence. Id. When deciding a motion to dismiss for lack
of subject matter jurisdiction, the court must assume
as true all undisputed allegations of fact made by the
nonmovant and draw all reasonable inferences from those
facts in the nonmovant's favor. See Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995). If the Court of
Federal Claims determines at any time that it lacks
subject matter jurisdiction, it must dismiss the action.
RCFC 12(h)(3).
According to the Tucker Act, the Court of Federal
Claims:
shall have jurisdiction to render judgment upon
any claim against the United States founded ei-
ther 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)(1).
To be cognizable under the Tucker Act, the claim
must be one for money damages against the United
States, and the plaintiff must demonstrate that the source
of substantive law upon which he or she relies is a money-
mandating source. See Ferreiro v. United States, 501 F.3d
1349, 1351 (Fed. Cir. 2007). However, the Tucker Act
does not, by itself, create a substantive right enforceable
against the United States for monetary relief. Id. The
plaintiff must identify a separate contract, regulation,
statute, or Constitutional provision, which, if violated,
provides for a claim for money damages against the
United States. Id.SMITH v. US 6
A.
With regard to tax disputes, 28 U.S.C. § 1346(a)(1)
provides for concurrent jurisdiction in the federal district
courts and the Court of Federal Claims with respect to
“[a]ny civil action against the United States for the recov-
ery of any internal-revenue tax alleged to have been
erroneously or illegally assessed or collected . . . under the
internal-revenue laws. . .” However, § 6512(a) bars a suit
for refund involving a tax year for which a Tax Court
petition contesting a deficiency determination has been
filed. See Solitron Devices v. United States, 862 F.2d 846,
848 (11th Cir. 1989) (“A bar to the exercise of jurisdiction
by the district court over a tax case is triggered when the
taxpayer files a petition with the Tax Court.”). Here, the
Court of Federal Claims correctly found that §6512(a)
precluded it from exercising jurisdiction because Mr.
Smith had previously filed Tax Court petitions seeking
redetermination of the same liabilities. 4
B.
When a taxpayer is assessed with an income tax defi-
ciency, he may challenge that assessment in one of two
ways. One way is to pay the tax, request a refund from
the IRS, and then file a refund suit in the Court of Fed-
eral Claims or in a district court. I.R.C. § 7422(a). The
Court of Federal Claims lacks jurisdiction over a tax
refund suit unless the assessment has been fully paid.
See Ledford v. United States, 297 F.3d 1378, 1382 (Fed.
Cir. 2002). In the alternative, the taxpayer can file a
petition with the Tax Court without paying the assess-
ment. See Flora v. United States, 362 U.S. 145, 163
(1960). With certain exceptions, if a taxpayer properly
4 Section 6512(a) provides for certain exceptions,
but Mr. Smith failed to identify facts to support his con-
clusory assertions that those exceptions apply.
7 SMITH v. US
files a petition with the Tax Court, he cannot later file a
claim in the Court of Federal Claims or in a district court
to obtain a credit or refund for the same taxable year.
I.R.C. § 6512(a).
Here, the Court of Federal Claims properly dismissed
Mr. Smith’s claim for lack of subject matter jurisdiction
because the government submitted evidence demonstrat-
ing that Mr. Smith failed to satisfy the full payment rule.
Mr. Smith offered no documentary evidence, such as a
receipt or cancelled check proving that he had fully satis-
fied the assessment, and his self-serving speculation or
testimony in that regard is insufficient to satisfy his
burden to establish jurisdiction over his claims by pre-
ponderant evidence. The Tax Court found that Mr.
Smith’s arguments lacked merit and that he had failed to
show that the IRS records demonstrating the failure were
incorrect.
C.
The Appellant’s “innocent spouse” contentions are
similarly unsupportable. The requested relief arises out
of a deficiency proceeding originally filed in the Tax Court
according to I.R.C. § 6513(a), but Mr. Smith later sought
to establish jurisdiction in the Court of Federal Claims
pursuant to § 6015(e)(3). The Court of Federal Claims was
correct not to exercise jurisdiction where, as here, the
pending suit cannot be reconciled with the “innocent
spouse” requirements provided in § 6015(e)(3). 5
5 Section 6015(e)(3) applies where one spouse files a
“stand alone” action for “innocent spouse” relief and either
spouse thereafter files a refund suit in the district court or
the Court of Federal Claims. In that situation, the court
in which the refund suit is filed acquires jurisdiction over
all issues for the tax year in question. I.R.C. § 6015(a)-(e)
(setting forth statutory requirements).
SMITH v. US 8
Mr. Smith filed suit in the Court of Federal Claims
shortly before the Tax Court was scheduled to hold a trial
for his tax deficiencies for the years 2001 to 2005. Juris-
diction under § 6015(e)(3), however, is directed at situa-
tions where “stand-alone” proceedings are brought in
response to a refund suit. See § 6015(e)(3) (limiting the
statutory relief to suits for a refund). For the years 2001
through 2005, Mr. Smith requests relief in response to a
notice of deficiency, yet he opted not to proceed in the
Court that has sole jurisdiction over such claims. See §
7402(e) (providing the Tax Court with sole jurisdiction
over petitions responding to a notice of deficiency). As
such, the Court of Federal Claims has no jurisdiction over
the contested tax liabilities from 2001 through 2005.
There is also no evidence in the record that would
tend to show Mr. Smith as an “innocent spouse.” To the
contrary, joint and several liability is appropriate in this
case since Mr. Smith has been on notice of all tax returns
made in his name. Appellant’s knowledge of the prior
filings and proceedings belies his “innocent spouse” argu-
ments.
III.
This Court reviews the denial of a discovery request
for abuse of discretion. See Rick’s Mushroom Serv., Inc. v.
United States, 521 F.3d 1338, 1342 (Fed. Cir. 2008).
Here, the Court of Federal Claims properly denied Mr.
Smith’s request for discovery because it found that he
failed to explain with sufficient specificity how discovery
would help him overcome the various jurisdictional bars
to his suit, which are outlined above, and thus, permitting
discovery would likely have unnecessarily delayed resolu-
tion of the matter. 6 Mr. Smith did not identify facts that
6 Despite Mr. Smith’s arguments to the contrary,
even if the government’s filing of exhibits along with its
9 SMITH v. US
would support his claims for jurisdiction or explain how
the documents he requested would show that the Court
had jurisdiction.
IV.
Mr. Smith argues that the Court of Federal Claims
abused its discretion by denying his request to amend or
supplement his complaint to include a proper jurisdic-
tional statement. We review a decision of the Court of
Federal Claims to deny a motion for leave to amend a
pleading for an abuse of discretion. See Renda Marine,
Inc. v. United States, 509 F.3d 1372, 1379 (Fed. Cir.
2007). “An abuse of discretion occurs when a court mis-
understands or misapplies the relevant law or makes
clearly erroneous findings of fact.” Id.The Court of Federal Claims did not err in denying
Mr. Smith’s request because, as it explained, Mr. Smith
had no meritorious basis upon which to bring his claims,
and the jurisdictional bars that prevented the Court of
Federal Claims from having jurisdiction would have
likewise precluded a district court from having jurisdic-
tion.
V.
Mr. Smith also appeals the decision of the Court of
Federal Claims denying his motion for relief from the
judgment under RCFC 60(b) on the ground that the Court
of Federal Claims had no arguable basis for dismissing
his suit. We review the denial of a motion for relief from
motion to dismiss had converted the motion to dismiss
into a motion for summary judgment, that conversion
would only entitle Mr. Smith to “a reasonable opportunity
to present all the material that is pertinent to the mo-
tion,” not to engage in a fishing expedition for information
that would not establish jurisdiction. RCFC 12(d).
SMITH v. US 10
the judgment for abuse of discretion. See Patton v. Sec’y
of Dep’t of Health & Human Servs., 25 F.3d 1021, 1029
(Fed. Cir. 1994). The Court of Federal Claims may relieve
a party from a final judgment where it deems the judg-
ment to be void. RCFC 60(b)(4). Rule 60(b)(5) permits a
party to obtain relief from a judgment or order if, inter
alia, “applying [the judgment or order] prospectively is no
longer equitable.” It provides a means by which the Court
of Federal Claims can modify or vacate a judgment or
order where a significant change in the factual conditions
or legal landscape renders continued enforcement of the
judgment or order harmful to the public interest. See
Horne v. Flores, 129 S. Ct. 2579, 2593 (2009) (discussing
analogous Federal Rule of Civil Procedure 60(b)(5)). Rule
60(b)(6) is a catchall provision that enables the Court of
Federal Claims to grant relief from a judgment “for any
other reason that justifies relief.” It is generally available
only in the presence of extraordinary circumstances. See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
863 (1988) (quotation omitted) (discussing analogous
Federal Rule of Civil Procedure 60(b)(6)).
Here, the Court of Federal Claims properly denied
Mr. Smith’s motion for relief from the judgment because it
had jurisdiction to determine whether it had jurisdiction,
and that decision was correct for the reasons explained
above. Mr. Smith challenged the legal conclusions of the
Court of Federal Claims, rather than demonstrating that
a change in the facts or law made enforcement of the
judgment detrimental to the public interest. His dissatis-
faction with the judgment does not constitute the type of
“extraordinary circumstances” that warrant granting
Rule 60(b)(6) relief.
11 SMITH v. US
VI.
Mr. Smith also appeals the decision of the Court of
Federal Claims denying his request to transfer his case to
a district court. We review the denial of a request to
transfer a claim to another court for abuse of discretion,
while a finding that the transferee court would lack
jurisdiction is reviewed de novo. See Rick’s Mushroom
Serv., 521 F.3d at 1343. 28 U.S.C. § 1631 provides that if
a civil action is filed in a court that lacks jurisdiction, the
court may, if it is in the interest of justice, transfer the
action to another court in which the action could have
been brought if the transferee court would have jurisdic-
tion.
Here, it was not an abuse of discretion for the Court of
Federal Claims to deny Mr. Smith’s transfer request
because sovereign immunity and § 6512(a) would bar Mr.
Smith’s suit in any court. In some circumstances, a court
may transfer a case under
§ 1631 if a plaintiff’s claim would be time-barred if the
case were dismissed. See Tex. Peanut Farmers v. United
States, 409 F.3d 1370, 1374 (Fed. Cir. 2005). But that
assumes plaintiff’s claim could otherwise stand if the
statute of limitations had not run. See id. Transfer of Mr.
Smith’s claim would not remove the jurisdictional bar.
We have considered Mr. Smith’s other arguments
made on appeal and find that they provide no basis for
relief. We order payment by Mr. Smith to the United
States for the reasonable costs for printing, copying, and
the like incurred by the United States in defending the
appeal before this court.
For the foregoing reasons, the decision of the Court of
Federal Claims is hereby
AFFIRMED
SMITH v. US 12
COSTS
Costs imposed on Appellant as set forth above.