Podlucky v. United States

In the United States Court of Federal Claims
No. 21-1633 T
(Filed: January 20, 2022)
(NOT FOR PUBLICATION)
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GREGORY JOSEPH PODLUCKY *
AND KARLA SUE PODLUCKY, *
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Plaintiffs, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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Gregory Joseph Podlucky and Karla Sue Podlucky, pro se, of Colorado Springs, CO.
Stefan R. Wolfe, Trial Attorney, Court of Federal Claims Section, Tax Division,
Department of Justice, with whom were, David A. Hubbert, Deputy Assistant Attorney General,
and David I. Pincus, Chief, Court of Federal Claims Section, all of Washington, D.C., for
defendant.
MEMORANDUM OPINION AND ORDER
On July 29, 2021, Plaintiffs Gregory and Karla Podlucky, proceeding pro se, filed a
complaint with this Court seeking “tax refunds for the tax years 2003, 2004, 2005 and 2006 in
the amounts of $90,301, $137,306, $147,272 and $96,859, respectively.” ECF No. 1 at 2
(“Compl.”). In support of their claims, Plaintiffs attached “amended returns on Form 1040X for
the tax years 2003, 2004, 2005 and 2006,” which they allegedly filed on July 22, 2021—seven
days prior to commencing the instant case. Id.; see also ECF No. 1-1 (“Pls.’ Ex. 1”).
Before the Court is the government’s motion to dismiss under Rule 12(b)(1) of the Rules
of the Court of Federal Claims (“RCFC”). ECF No. 10 (“Gov’t Mot. Dismiss”). The
government moves to dismiss Plaintiffs’ complaint on two grounds: first, “[t]here is no
jurisdiction for tax years 2003 through 2006 because the claim for refund was not properly filed
with the IRS,” id. at 3, and second, “[t]here is no jurisdiction because the statute of limitations
expired for each of the tax years at issue,” id. at 4.
Plaintiffs’ response to the government’s motion was due on or before December 27,
2021. To date, Plaintiffs have not responded. For the reasons that follow, the government’s
motion to dismiss is GRANTED.
DISCUSSION
A. Legal Standard
Pursuant to RCFC 12(b)(1) and 12(h)(3), this Court must dismiss any claim that does not
fall within its subject matter jurisdiction. In considering a motion to dismiss for lack of subject
matter jurisdiction, the Court must accept as true all undisputed factual allegations made by the
non-moving party and draw all reasonable inferences in the light most favorable to that party.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Estes Express Lines v. United States, 739
F.3d 689, 692 (Fed. Cir. 2004) (“In deciding a motion to dismiss for lack of subject matter
jurisdiction, the court accepts as true all uncontroverted factual allegations in the complaint, and
construes them in the light most favorable to the plaintiff.”).
The United States Court of Federal Claims, like all federal courts, is a court of limited
jurisdiction. Under the Tucker Act, the Court may “render judgment upon any 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)(1). The
Tucker Act, though, “does not, of itself, create a substantive right enforceable against the United
States . . . .” Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing Ferreiro v.
United States, 501 F.3d 1349, 1351 (Fed. Cir. 2007)). Rather, to establish jurisdiction, “the
plaintiff must identify a separate contract, regulation, statute, or constitutional provision that
provides for money damages against the United States.” Id.“[I]n the context of tax refund suits, . . . Tucker Act jurisdiction is limited by the Internal
Revenue Code, including 26 U.S.C. § 7422(a).” RadioShack Corp. v. United States, 566 F.3d
1358, 1360 (Fed. Cir. 2009) (citations omitted). Thus, to the extent a plaintiff seeks a refund of
federal taxes that are alleged to have been “erroneously or illegally assessed or collected,” the
plaintiff must meet the jurisdictional thresholds in 26 U.S.C. § 7422(a), which provides that a
taxpayer must first file an administrative claim for a refund with the Internal Revenue Service
(“IRS”) before bringing an action in any court. 26 U.S.C. § 7422(a); see also United States v.
Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008) (“[A] taxpayer must file an administrative
claim with the Internal Revenue Service before filing suit against the Government.”).
Moreover, to aid in the jurisdictional analysis of tax cases, RCFC 9(m) sets forth special
pleading requirements for tax refund claims. Pursuant to RCFC 9(m), a plaintiff must provide,
among other things, the amount, date, and place of each tax payment to be refunded, as well as a
copy of the claim for refund. RCFC 9(m). “The requirements of [RCFC 9(m)] embody the
jurisdictional prerequisites for maintaining such a suit in this court.” Simmons v. United States,
127 Fed. Cl. 154, 160 (2016).
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Plaintiffs proceeding pro se are entitled to a liberal construction of their pleadings.
Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiring that allegations contained in a pro se
complaint be held to “less stringent standards than formal pleadings drafted by lawyers”).
Nevertheless, all plaintiffs still bear the burden of establishing subject matter jurisdiction by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988).
B. Analysis
Plaintiffs’ claims are not within the Court’s subject matter jurisdiction. To begin with,
Plaintiffs’ complaint falls short of compliance with the special pleading rules for tax refund
claims set forth in RCFC 9(m). Among other requirements, RCFC 9(m) compelled Plaintiffs to
include with their complaint “a copy of the claim for refund” they filed with the IRS. RCFC
9(m)(2)(A). Yet, the only materials included with Plaintiffs’ complaint are a series of what
purport to be IRS forms 1040X (“Amended U.S. Individual Income Tax Return”) dated July 11,
2021, and related attachments. See generally Pls.’ Ex. 1. Notably, the forms appear blank as to
which “calendar year” or “fiscal year” they relate. Id. The government admits that the tax years
“can be inferred” from the forms when compared with the complaint, Gov’t Mot. Dismiss at 2
n.3, but the Court concurs that, nevertheless, Plaintiffs “neither included a statement that set forth
the date and place the 2003, 2004, 2005, and 2006 returns were filed, nor stated the place the
claims for refund were filed,” id. at 2 n.1—information expressly required by RCFC 9(m).
The Court’s pleading rules, however, are perhaps the least of Plaintiffs’ hurdles, as their
own filings create an inescapable Catch-22. Recall, 26 U.S.C. § 7422(a) provides that “[n]o 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 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 . . . .” 26 U.S.C. § 7422(a). Section 7422, in other words,
necessitates that a plaintiff exhaust its administrative remedies before entering the courthouse.
Supporting this exhaustion process, 26 U.S.C. § 6532(a)(1) provides that “[n]o suit or proceeding
under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be
begun before the expiration of 6 months from the date of filing the claim required under such
section unless the Secretary renders a decision thereon within that time . . . .” 26 U.S.C.
§ 6532(a)(1) (emphasis added). Thus, to the extent the Court reads Plaintiffs’ 1040X forms as
the prerequisite “claim for refund” in section 7422, such claims for refund were filed with the
IRS mere days before Plaintiffs filed the instant case—a clear violation of the six-month
exhaustion period of section 6532(a)(1). Plaintiffs’ complaint shows no evidence that the IRS
had already “render[ed] a decision thereon within that time,” thus it cannot be said that Plaintiffs
exhausted their administrative remedies. On this ground alone, the Court is compelled to dismiss
Plaintiffs’ complaint for lack of subject matter jurisdiction.
Alternatively, to the extent the Court does not read Plaintiffs’ exhibit as evidence of a
claim for refund, then Plaintiffs’ claims appear irreparably beyond the statute of limitations. In
relevant part, 26 U.S.C. § 6511 provides that a
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[c]laim for credit or refund of an overpayment of any tax imposed by this title in
respect of which tax the taxpayer is required to file a return shall be filed by the
taxpayer within 3 years from the time the return was filed or 2 years from the time
the tax was paid, whichever of such periods expires the later . . . .
26 U.S.C. § 6511(a). Thus, at best, Plaintiffs’ 2003, 2004, 2005, and 2006 returns would need to
have been “filed” no earlier than July 29, 2018—three years prior to the commencement of this
action—to be within the applicable limitations period. No such evidence is offered in Plaintiffs’
pleading, aside from the “amended” returns that Plaintiffs assert were filed on July 22, 2021 (and
which, for reasons explained immediately above, violate the six-month statutory exhaustion
period). See Compl. at 2. 1
Perhaps most fatal, Plaintiffs have not responded whatsoever to the government’s motion
to dismiss, and the time for doing so has long since passed. Pursuant to RCFC 7.2(b)(1), a
response to a 12(b)(1) motion “must be filed within 28 days after service of the motion.” RCFC
7.2(b)(1). Since the government filed its motion on November 23, 2021, ECF No. 10, Plaintiffs’
response was due on or before December 27, 2021. Plaintiffs, therefore, have failed to comply
with the Rules, and RCFC 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, the court may dismiss on its own motion . . . .” RCFC 41(b). 2
Regardless of Plaintiffs’ silence to the government’s motion to dismiss, the Court
possesses independent authority to dismiss sua sponte a complaint pursuant to RCFC 12(h)(3)
for lack of subject matter jurisdiction. RCFC 12(h)(3) (“If the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.”). Plaintiffs’ failure to
respond to the government’s motion to dismiss could be interpreted as a concession to dismissal.
RCFC 41(b). But to any extent that it is not, the Court independently finds that it lacks subject
matter jurisdiction over the complaint, given Plaintiffs’ failure to comply with RCFC 9(m),
failure to conform with the six-month period prescribed by 26 U.S.C. § 6532, and, alternatively,
the long-since expired statute of limitations in 26 U.S.C. § 6511(a). Accordingly, the Court is
compelled to dismiss Plaintiffs’ complaint.
1
The government’s motion to dismiss includes “a copy of [Plaintiffs’] tax transcripts for the years 2003-
2006. The transcripts reveal that Plaintiffs filed their returns (and paid any taxes due) within one year of the close of
the tax year.” Gov’t Mot. Dismiss at 5. According to the government, “[Plaintiffs’] ability to file any refund claim
expired on November 5, 2010.” Id. The Court does not dispute the government’s assertions, but it also does not
need to rely on them in dismissing Plaintiffs’ complaint. Plaintiffs bear the burden of establishing this Court’s
subject matter jurisdiction, which they have failed to do.
2
As the government’s motion to dismiss is pursuant to RCFC 12(b)(1)—relevant to the Court’s
jurisdiction—and not pursuant to RCFC 12(b)(6) or 56—relevant to Plaintiffs’ claims—the Court need not carry
Plaintiffs across the line in establishing subject matter jurisdiction. Cf. Fox v. Strickland, 837 F.2d 507, 509 (D.C.
Cir. 1988) (“[I]t was incumbent upon the district court, in this case, to inform [the plaintiff] of the pendency of the
defendants’ motion and to accord him an ‘explanation of the risks attending failure to respond to a summary
judgment motion.’” (quoting Ham v. Smith, 653 F.2d 628, 630 (D.C. Cir. 1981)).
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CONCLUSION
For the foregoing reasons, the Court GRANTS the government’s motion to dismiss
Plaintiffs’ complaint pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction. The
Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/ Zachary N. Somers
ZACHARY N. SOMERS
Judge
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