Payne v. United States

In the United States Court of Federal Claims
No. 17-1661T
Filed: August 27, 2018 F l L E D
AUG 2 7 2018
U.S. COURT OF
*>i¢=i=*=!=*=i<>i¢¢i=***>i¢>i=*=!=$=!¢*
EDWARD HAYWOOD PA‘(NE, JR., : FEDERAL CLAiMS
P|aintiff, * m § P|aintiff; illlotion to
v * Dismiss; Subject Matter
' * Jurisdiction; Tort C|aim;
UN|TED STATES, * Fraud C|aim; Tax Refund
* C|aim.
Defendant. =l=
sic
=l=
>l==i=*=!=*=i=*=i=*$***$=l=****
Edward Hayvvood Payne, Jr., Philadelphia, PA, LY.
Katherine R. Powers, Tria| ,L’lttorneyl Court of Federal C|aims Section, Tax Division,
United States Department of Justice, Washington, DC for defendant With her Were David
l. Pincus, Chief, Court of Federal C|aims Section, Tax Divisionl and Richard E.
Zuckerman, Principal Deputy Assistant Attorney Genera|.
OPlNlON
HORNl J.
FlND|NGS OF FACT
On October 27, 2017, M se plaintiff Edward Haywood Payne, Jr. filed a complaint
in the above-captioned case in Which plaintiff makes a vague claim concerning alleged
negligence by the internal Revenue Service (lRS) regarding an amended tax return,
allegedly filed in plaintiffs name and Without plaintiffs authorization Plaintiff’s complaint
states “[t]he grounds for my claim is negligence on [sic] part of the internal Revenue
Service (lRS). The l.R.S [sic] processed not only a fraudulent claim in my name, but
processed and paid a return to an unauthorized person. The amended return had no
signaturel let alone not even my signature." P|aintiff’s complaint also states:
The lnternal Revenue Service failed to protect my tax account, an inherent
right as a Citizen of the United States of America, and a Tax Payer of the
same. This failure resulted in my seeking of legal counsel causing me to
lose - $3,200.00, and suffering damages of at least $6,400.00.
(capitalization in original). Plaintiff also vaguely claims in his complaint that an attorney
named David Rulcin misled plaintiff With regard to an undefined “agreement." Plaintiff’s
complaint statesl “[t]he grounds for my claim against attorney David Rubin is that he
intentionaly [sic] misled me into signing an agreement and subsequently being liable to
pay his $3,200.00 fee by way of personal check. (USAA)." Plaintiff’s complaint aiso is
unclear regarding the amount of damages plaintiff is seeking Plaintiff alleges that the
iRS’s failure to protect plaintiffs tax account “resulted in my seeking of legal counsel
causing me to lose ~ $3,200.00, and suffering damages of at least $6,400.00.” Plaintiff
then requests under a separate section of his complaint titled “REL!EF" that the court
award plaintiff a “totai of $5,700.00,” Which plaintiff separates into “Attorneys Fees,
$3,200.00,” and “Ta)< Return $2,500.00.” (capitalization in original).
Attached to the complaint is a letter dated June 20, 2017 from the tRS to plaintiff
regarding plaintiffs “income Tax Liability” for the tax period ending on “12/2013.”
According to the June 20, 2017 IRS letter, the lRS Appeals Office in Phiiadelphia had
completed a review of plaintiffs “c|aim for abatement and/or refund of taxes.” The IRS
appears to have denied plaintiffs “ciaim” and noted in the June 20, 2017 letter that “[s]ince
no information was provided to support your ciaim, there is no basis to allow any part of
your claim.” Copied on the June 20, 2017 fetter Was “David N Rubin.” ln his complaint,
plaintiff does not provide additional details about the June 20, 2017 letter.
On January 30, 2018, defendant, United States, filed a motion for a more definite
statement pursuant to Rule 12(e) (2018) of the Rules of the United States Court of Federal
Ctaims (RCFC), requesting that the court order piaintiff to amend the complaint and
“provide more information about the nature of Piaintiffs suit." Specifica!ly, defendant’s
motion noted that the compiaint “omits the tax year in which Plaintiff alleges an
unauthorized person filed an amended return in Plaintiff’s name," and that “[p]laintiff has
not satisfied Rule 9(m) which requires, among other things, that the complainant identify
the tax year for which the refund is sought and provide a copy of the ciaim for refund to
the Court.” Defendant alleged that the deficiencies in plaintiffs complaint prevented
defendant from understanding plaintiffs claim, “including whether this Court has subject-
matterjurisdiction and whether Plaintiff intends to bring a claim for a tax refund and/or a
claim pursuant to 31 U.S.C. § 3343 (providing recovery for a lost or stolen check).”
(citation omitted).
On February 28, 2018, this court granted defendant’s motion for a more definite
statement, noting that plaintiffs complaint was vague and ambiguous and prevented
meaningful review. The court stated in its February 28, 2018 Order that "plaintiff shall
identify the time period in which plaintiff alleges ‘[t]he lRS processed not oniy a fraudulent
ciaim in my name, but processed and paid a return to an unauthorized person.’” The court
also stated that “if plaintiff is seeking a tax refund in the above-captioned case, plaintiffs
claim for a tax refund shall comply with RCFC 9(m)." Additionally, the court’s February
28, 2018 Order stated that plaintiff “shall specificaily indicate [in the amended complaint]
who is ‘attorney David Rubin’ and the role he played" in plaintiffs tax matters
in accordance with the February 28, 2018 Order for a more definite statement,
plaintiff filed a one and a half page, still vague, amended complaint on i\!larch 12, 2018.
The first paragraph of the amended complaint, regarding plaintiffs interactions with
attorney David Rubin, states:
On or about August 24, 2016 the plaintiff (Edward H. Payne Jr.) contacted
thr. Rubin via phone to discuss fraud on the personal tax account of the
plaintiff. As a result, a meeting was set up with lVlr. Rubin and the plaintiff
During the meeting lVlr. Rubin assured the plaintiff that the 2014 tax return,
which was filed about February 16, 2015, would be recovered of $2,509.00,
as well as damages from both parties responsible for the fraud $3,200.00
each, totaling $6,400.00. After being assured these conditions the plaintiff
signed an agreement with |Vfr. Rubin and wrote him a personal check for
$3,200.00, on the spot in his office iocated at 1500 JFK Boulevard Ste1900,
Philadelphia, PA. 19102. The purpose of this agreement was for attorney
David Rubin of Rubin & Rubin Tax Attorneys to provide full legal
representation of the plaintiff
(capitalization in originai). The second paragraph of plaintiffs amended complaint,
regarding a 2011 amended tax return, states:
The actual fraud occurred on the piaintiff’s 2011 . . . tax returnl where the
2011 tax return was amended by an unauthorized party and a dependent
child was added The original 2011 tax return was signed and authorized by
the plaintiff and was filed about i\/iarch 10, 2012, the 2011 amended return
was not signed or authorized by the plaintiff At these times 2011 and 2014
. . . the legal address ofthe plaintiff was 214 North 52nd Street Phi|adelphia,
PA. 19139. The tax iD # of the plaintiff is . . . and the refunds for 2011 and
2014 were fiied in Philadelphia, PA., however the frauduient return was file
[sic] iri New York, within the city limits of l\/lount Vernon the plaintiff believes
The fraudulent tax return listed an address of 214 North 42mcf Street
Philadelphia, PA., an addressed [sic] never used by the plaintiff nor never
reflected on the piaintiffs drivers [sic] license. A report was aiso filed with
the Philadeiphia Police 19th District iocated at 6059 Haverford Avenue
19151.
Aiong with his amended complaint, plaintiff included two copies of a letter dated
December 27, 2016 from the lRS to plaintiff The December 27, 2016 letter states in
relevant part:
Dear Taxpayer:
VVE COULDN’T AF_LOW YOUR CLA|iV|
VVe disallowed your claim for credit for the period iisted at the top of this
letter [Tax Period: Dec. 31, 2011].
VVHY WE CAN’T Ai_l_OVV YOUR CLAli\/i
V\ie have reviewed your claim of identity theft (ldentify Theft Affidavit or
police report) and supporting documentation and have determined that you
are not a victim of identity theft. it appears you or your representative filed
the submitted return and did not include ali of your income.
(capitaiization in original). The December 27, 2016 letter also contained information
informing the plaintiff as to how to appeal the lRS’s decision. P|aintiff’s amended
complaint does not discuss the attached December 27, 2016 letter.
On April 26, 2018, defendant filed a “Partial lVlotion to Dismiss for Lack of Subject-
lVlatter Jurisdiction” pursuant to RCFC 12(b)(1). Aithough the complaint and amended
complaint are unciear as to the claims plaintiff is actually asserting even in his amended
complaint, defendant’s partial motion to dismiss extrapolated plaintiffs complaint into four
separate claims According to defendant’s interpretation of piaintiff’s pleadings, plaintiff
had asserted four causes of action1
(1) [A] claim seeking damages against the lRS based in negligence; (2)
a claim against the individual attorney David Rubin relating to his
services; (3) a claim for a refund of taxes for the tax year ending in 2011,
due to fraud; and (4) though somewhat unclear, a claim for a refund of
taxes for the tax year ending in 2014.
Defendant argued that this court lacked subject matter jurisdiction over “Plaintiffs claim
seeking damages against the lRS for negligence and his ciaim against attorney David
Rubin,” and defendant requested that the court grant defendant’s partial motion to dismiss
as to these two claims for lack of subject matter jurisdiction.
Defendantfiled its current and updated partial motion to dismiss on June 28, 2016,1
asserting that it is now seeking to dismiss three of plaintiffs four claims |n the June 28,
2018 partial motion to dismiss, defendant indicates that plaintiff had made four separate
claims, as follows:
C|aim One - a “Claim for Negligence Against the iRS"
C|aim Two ~ a “Claim for Damages Against David Rubin”
C|aim Three - an “lnsufficiently Described C|aim Relating to Tax Year 2014”
Ciaim Four - a “Tax Refund for the ¥ear 2011”
(capitalization in original). Defendant moves to dismiss claims one and two for lack of
subject matter jurisdiction and claim three for failure to state a claim. in its motion,
however, defendant does not move to dismiss the fourth claim reiating to the 2011 tax
refund Defendant states that it “will move for summary judgment” on plaintiffs 2011 tax
refund claim in light of “additional material from the lRS regarding the denial of plaintiffs
1 Defendant filed an updated partial motion to dismiss after the court ordered defendant
to refile the motion to specify the tax years at issue in defendant’s motion.
4
claim for identity theft” that defendant has received since filing its original motion to
dismiss on April 26, 2018.
Subsequently, on August10,2018, plaintiff submitted to the court a document titled
“PLAINTIFFS MOT|ON FOR FULL JUDGEl\/lEN'l'.” (capitalization in original). Although
plaintiff titled his August 10, 2018 filing a “motion for full judgment,” the August 10, 2018
filing appears to be plaintiffs albeit untimely filed, response to defendant’s June 28, 2018
partial motion to dismiss On August 13, 2018, the court ordered plaintiffs filing to be filed
on the docket in the above-captioned case. ln plaintiffs August 10, 2018 filing, plaintiff
vaguely, alleges, without further explanation, that defendant “admitted to liability at least
from the perspectives that the Defendants claims for the tax returns were legitimate," and
asserts that defendant claimed “the responsibility to pay the claims for 2011 & 2014.”
Plaintiff also asserts that an “affidavit prepared by my former attorney David Rubin to my
knowledge contains all the correct dates and other pertinent information, because the
document Was accepted by this court." Plaintiff, howeverl never provides the court With
an affidavit from lVlr. Rubin or such an affidavit Plaintiff then states for the first time in his
August 10, 2018 filing that he is seeking “refunds” for the 2011 and 2014 years Plaintiff
states that:
As for the 2014 amended tax return being mistakenly identified as 2011 ,
This issue was addressed in the Plaintiffs amended complaint, David
Rubin’s affidavit and my personal tax file Which the court can subpoena As
for reference to the brief if this court reviews the phone logs, it Will be found
that and l.R.S. represented [sic] even told me,” [sic] lt is my identity in this
matter, therefore it is my money”. Due to fraudulent activity on my tax
account, both years 2011 and 2014 were adversely affected therefore
ciaims resuiting in refunds for both years shouid be allowed on behalf cf the
Plaintiff
Plaintiff, however, does not provide any additional information in his August 10, 2018 filing
regarding his unspecified 2011 and 2014 refund claims Plaintiff also alleges for the first
time in his August 10, 2018 filing that:
in this case a Treasury check was not merely stolen, my identity was as
supported by a Philadelphia Police Report. The Police Report states that
the address used was not mine, how could a check have been mailed to me
at my horne of record at the time concerning this claim?
Nor does plaintiff provide any additional information in his August10, 2018 filing regarding
a stolen check or stolen identity claim. Plaintiffs August 10, 2018 filing concludes:
VVHEREFORE, based on all the evidence and reasons set forth above,
Plaintiff request [sic] that the court grant Plaintiffs motion to be awarded ail
the funds in which the law will allow. (1) C|aim for negligence against the
l.R.S. C|aim for reimbursement of attorney’s fees paid to David Rubin; and
the claims pertaining to the tax years 2011 and 2014.
DlSCUSS|ON
The court recognizes that plaintiff is proceeding p_rg Y. When determining Whether
a complaint filed by gr_g §§ plaintiffs is sufficient to invoke review by a court, pg §§
plaintiffs are entitled to a more liberal construction of their pleadings w l-iaines v_
Kerner, 404 U.S. 519, 520-21 (1972) (requiring that allegations contained in a B §§
complaint be held to “less stringent standards than formal pleadings drafted by lawyers”),
@t_i:g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);
i-lughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976),
re_h’g deniedl 429 U.S. 1066 (1977); l\/latthews v. United States, 750 F.3d 1320, 1322
(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), M, 603 F.
App’x 947 (Fed. Cir.), gert_. denied1 135 S. Ct. 1909 (2015). l-iowever, “there is no ‘duty
[on the part] of the trial court . . _ to create a claim which [plaintiff] has not spelled out in
his [or her] pleading . , , Lenden v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in originai) (quoting Scodin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat’l Traveiers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); §
also Bussie v. United States, 96 Fed. Cl. 89, 94, a_f_f;d_, 443 F_ App’x 542 (Fed. Cir. 2011);
lVlinehan v. United States, 75 Fed. Cl. 249, 253 (2007). “While a ng§e_ plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the B Y
plaintiff nevertheless bears the burden of establishing the Court’s jurisdiction by a
preponderance of the evidence." Ri|es v. United States, 93 Fed. Cl. 163l 165 (2010) (citing
Hughes v. Rowe, 449 U.S. at 9; and Tavlor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh’q and reh’q gr_i banc denied (Fed. Cir. 2002)); see aiso Golden v. United
States, 129 Fed. Cl. 630, 637 (2016); Shelkofskv v_ United States, 119 Fed. Cl. 133, 139
(2014) (“[W]hile the court may excuse ambiguities in a prg §§ plaintiffs complaint, the
court 'does not excuse [a complaint’s] failures.’" (quoting l-lenke v. United States, 60 F.3d
795, 799 (Fed. Cir. 1995))} Harris v. United States, 113 Fed. Cl. 290, 292 (2013)
(“Although plaintiffs pleadings are held to a less stringent standard, such leniency ‘with
respect to mere formalities does not relieve the burden to meet jurisdictional
reguirements.’" (quoting lVlinehan v. United States, 75 Fed. Cl. at 253)).
Additionaily, although “[a]n amended compiaint supersedes any previous
complaints," Tender Years Learninq Corp. v. United States, 128 Fed. Cl. 265, 272 (2016)
(citing Jet. lnc. v. Sewaqe Aeration Svs., 223 F.3d 1360, 1364~65 (Fed Cir. 2000)), the
court may liberally construe a pg § plaintiffs pleadings “‘to see if [a m Y] plaintiff has
a cause of action somewhere displayed.’” l_ong v. United States, 113 Fed. Cl. 7, 11 (2013)
(alteration in original) (quoting Ruderer v. United States, 188 Ct. Cl. 456, 468, 412 F.2d
1285, 1292 (1969)). This court and other federal courts have construed the amended
pleadings of a grg _s__e litigant as supplemental when the statements in the amended
document provide additional support to statements in the original pleading § Ayres v.
United Statesl 66 Fed. Cl. 551, 556 n.5 (2005) (permitting plaintiffs “Amendment to
Compiaint” to supplement, rather than supersede, the original complaint because the
“Amendment to Complaint” sought only to supptement plaintiffs prayer for relief), recons.
denied i_n jim 67 Fed. Cl. 776 (2005); see also Johnson v. interstate lqumt. Co., 962 F.
Supp. 2d 244, 250 (D.D.C. 2013) (“VVhile an amended complaint generally supersedes
the original, the court, mindful of Plaintiffs _B Y status, Will instead consider his
pleadings coilectively.”).2
Based on the record before this court, plaintiff filed his original complaint on
October 27, 2017 and his amended complaint on lVlarch 12l 2018. Plaintiffs lVlarch 12,
2018 amended complaint provides limited additional, albeit vague, information regarding
his asserted claims against the lRS and lVlr. Rubin. Because of plaintiffs p_r_o_ §§ status,
the court considers both complaints Even taken together, however, as discussed below,
there is insufficient description of plaintiffs claims for this court to take jurisdiction of
plaintiffs complaint
As previously noted, defendant has moved to dismiss two of the four claims
allegedly brought by plaintiff plaintiffs claim of negligence against the IRS and plaintiffs
claim against David Rubin, for lack of subject matter jurisdiction Defendant has moved
to dismiss for failure to state a claim plaintiffs possible refund claim regarding the 2014
tax year, but has not moved to dismiss plaintiffs possible refund claim regarding the 2011
tax year_ Regarding the negligence ctaim against the lRS and the claim against attorney
Rubin, “[s]ubject~matter jurisdiction may be challenged at any time by the parties or by
the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004)
(citing Fanninq, Phillips & l\/iolnar v. V\lest, 160 F.3d 717, 720 (Fed. Cir. 1998)); § M
lnt’l Elec. Tech. Corp. v. i-luqhes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The
Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this court as follows:
The United States Court of Federal C|aims shall have jurisdiction to 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) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allowjurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained See United States v. Navaio Nation, 556 U.S. 287,
289»90 (2009); see also United States v. l\/litchell, 463 U.S. 206, 216 (1983); Alvarado
Hosj:_)., LLC v. Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cntv., Ariz. v. United
States, 487 F.3d 871, 875 (Fed. Cir.), reh’q and reh’q en banc denied (Fed. Cir. 2007),
2 ln an unpublished opinion, the United States Court of Appeals for the Federal Circuit
acknowledged that an amended comptaint of a pig ge litigant may supplement the p_r_g _s__e_,-
litigant’s original complaint, See Younq v. United States, 497 F. App’x 53, 57 n.4 (Fed.
Cir. 2012) ("VVhile an amended complaint normally is deemed to supersede any
previously filed complaint, we liberally construe [plaintiff’s] gr_g sme_ pleadings and assume
for purposes of this opinion that he intended to supplement the original Complaint When
an Amended compiaint was filed . . . .”).
ge_rt. denied, 552 U_S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.
Cir. 1999). “Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States . . . United States v. lVlitchell, 463 U.S. at 216; see also United States v.
VVhite Nlountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbvterian Hosp. v.
United States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114,
1116 (Fed. Cir.), M denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States,
566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s lVlushroom Serv., inc. v. United States. 521
F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law
that creates the right to recovery of money damages against the United States."); Golden
v. United States, 118 Fed. Cl. 764, 768 (2014). ln Ontario Power Greneration1 lnc. v.
United States1 the United States Court of Appeals for the Federal Circuit identified three
types of monetary claims for Which jurisdiction is lodged in the United States Court of
Federal C|aims The court wrote:
The underlying monetary claims are of three types . . . First, claims alteging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver
encompasses ciaims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. iCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007~08 [(1967)] (describing illegal exaction claims as claims “in
which ‘the Government has the citizen’s money in its pocket’" (quoting
Clapp v. United States, 127 Ct. Cl_ 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal C|aims has jurisdiction over those claims where
“money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury.” Eastgort S.S., 372 F.2d at 1007.
C|aims in this third category, where no payment has been made to the
government, either directly or in effect, require that the “particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” ld__; see also [United States v_ l'l'estan, 424 U.S.
[392,] 401-02 [1976] (“V\lhere the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of C|aims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating”
statute.
Ont. Power Generation1 inc_ v. United States1 369 F.3d 1298, 1301 (Fed. Cir. 2004); §
also Samish indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); ``i'wp.
of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.”' United States v_
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White lVlountain Apache Tribe, 537 U.S. at 472; United
States v. l\/litchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), M denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself See United States v. Navaio
l\|ationl 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of iaw (e.g., statutes or contracts).”). “‘lf the statute is not
money~mandating, the Court of Federal C|aims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction.’” Jan's Helicopter Serv., lnc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greeniee Cntv., Ariz. v.
United States, 487 F.3d at 876); see also N.Y. & Presbvterian i~losb., 881 F.3d at 881;
Fisherv. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence ofa money-
mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Price v.
United States, 133 Fed. Cl. 128l 130 (2017); Peoples v. United States, 87 Fed. Cl. 553,
565-66 (2009).
V\lhen deciding a case based on a tack of subject matterjurisdiction or for failure
to state a claim, this court must assume that all undisputed facts aileged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. §§ Erickson
v, Pardus, 551 U.S. at 94 (“[VV]hen ruling on a defendant’s motion to dismiss a judge
must accept as true all of the factual allegations contained in the complaint.” (citing M
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506l 508 n.1 (2002)))); see also Frani842 F.3d 1246, 1249
(Fed. Cir. 2016) (“ln deciding a motion to dismiss a court is required to accept as true all
factual allegations pleaded.” (citing Ashcroft v. igbal, 556 U.S. 662, 678 (2009))); Fid. &
Guar. ins Undenivriters, lnc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015);
Trusted integration, lnc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
“Determination ofjurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiffs claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), Mg
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez~l\/lcCauilev lnv. Grp., lnc. v. United States, 93 Fed. Cl. 710,
713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the
grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing
that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)
(2018); see also Ashcroft v. iqbal, 556 U.S. at 677~78 (citing Bell Atl. Corp. v. Twomblv,
550 U.S. at 555~57, 570). To properly state a claim for relief, “[c]onclusory allegations of
law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.
Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also lVcheai v. Sprint Nextel
Corp.1 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in
part) (quoting C. WRiGHT AND A. iViiLLER, FEDERAL PRAcTicE ANo PRocEDuRE § 1286 (3d
ed 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations
unsupported by any factual assertions will not withstand a motion to dismiss”), M, 460
U.S. 325 (1983). “A plaintiffs factual ailegations must ‘raise a right to relief above the
speculative |evel’ and cross ‘the line from conceivable to piausibie."’ Three S Consulting
v. United States, 104 Fed. Ci. 510, 523 (2012) (quoting Bell At|. Corp. v. Twomb|v, 550
U.S. at 555), M, 562 F. App’x 964 (Fed. Cir.), @h’g denied (Fed. Cir. 2014). /-\s stated
in Ashcroft v. lgbal, “[a] pieading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘furtherfactual enhancement.”’
Ashcroft v. lgbai, 556 U.S. at 678 (quoting Be|l Atl. Corp. v. Twomblv, 550 U.S. at 555),
l. Plaintiff’s claim regarding the |RS’s alleged negligence.
Plaintiff claims in the above-captioned case that there was “negligence on [sic] part
of the internal Revenue Service (lRS)" because the iRS, allegedly, “processed and paid”
a “fraudulent claim” filed in plaintiffs name "to an unauthorized person.” Defendant argues
that the claim of “aileged negligence of the lRS for failure to protect plaintiffs ‘tax
account,’” is based in tortious acts and “falis outside this court’s jurisdiction." Due to this
court’s limited jurisdiction under the Tucker Act, this court does not have jurisdiction to
hear tort claims against the United States W28 U.S.C. § 1491 (a)(1) (“The United States
Court of Federal Claims shall have jurisdiction . . . in cases not sounding in tort.”); W
also Keene Corp. v. United States 508 U.S. 200, 214 (1993) (“[Tjort cases are outside
the jurisdiction of the Court of Federal C|aims today.”); Brown v. United States, 105 F.3d
621, 623 (Fed. Cir.) (“The Court of Federal C|aims is a court of limited jurisdiction lt lacks
jurisdiction over tort actions against the United States.”), Mg denied (Fed. Cir. 1997);
Bobka v. United Statesl 133 Fed. Cl. 4051 412 (2017) (“[Plaintiff] also alleges that the
government engaged in tortious conduct, e.g., fraudl negligencel and defamation. . . .
This court, however, does not have jurisdiction over allegations based in tort.” (internal
reference omitted; emphasis in original) (citing Ricl<’s lV|ushroom Serv. v. United States,
521 F.3d at 1343)); Khalil v. United States, 133 Fed. Ct. 390, 392 (2017); i_effebre v.
United States, 129 Fed. Cl. 48, 53 (2016); Kant v. United States, 123 Fed. Cl. 614, 616
(2015). lt is well-established that claims alleging negligence against a government agency
are tort claims See Rick’s l\/lushroom Serv. lnc. v. United States, 521 F.3d at 1343
(holding that “[a] ciaim for professional negligence is a tort claim” and thus lies outside
the United States Court of Federal C|aims’ jurisdiction under the Tucker Act (citing
GlobalNet Financial.Com, lnc., v. Frank Crvstal & Co., 449 F.3d 377, 385 (2d Cir. 2006);
Gi_F Const. Corp. v. LAN/STV, 414 F.3d 553, 555 (5th Cir. 2005); Piazza v. Ebsco lndus.,
273 F.3d 1341l 1348 (11th Cir. 2001); White v. Napoleon, 897 F.2d 103, 114 n.4 (3d Cir.
1990))); see also Rothinq v. United States, 132 Fed. Cl. 387l 390 (2017) (dismissing
plaintiffs claim under the Federal Tort C|aims Act because "jurisdiction lover tort claims]
lies exclusively with the United States district courts” (citing Sounders v. S.C. Pub. Serv.
Auth., 497 F.3d 1303, 1307 n.5 (Fed. Cir. 2007))). ln particular, this court has held that
assertions of negligence by lRS officials are properly classified as tort claims §
'i'opsnik v. United States, 120 Fed. Ct. 282, 286-87 (2015) (holding that plaintiffs “factual
allegations of improper conduct by lRS officials based on their allegedly intentional or
10
l(¢
negligent actions” gives rise to an action which sound in tort’ and [is] therefore not within
this Court’s jurisdiction underthe Tucker Act" (quoting 28 U.S‘C. § 1491(a)(1))). Because
plaintiff is asserting a claim based on “negligence on [sic] part of the lnternal Revenue
Service," plaintiffs claim of negligence against the lRS sounds in tort and must be
dismissed for lack of subject matterjurisdiction. See Brown v. United States, 105 F.3d at
623; see also Topsnik v. United States, 120 Fed. Cl. at 287.
il. Plaintiff’s claim regarding David Rubin.
Plaintiff also makes a claim against attorney David Rubin, stating that lVlr. Rubin
“intentionaly [sic] misled" plaintiff into signing “an agreement and subsequently being
liable to pay his $3,200.00 fee by way of personal check.” Defendant argues that this
claim also should be dismissed under RCFC 12(b)(1) because it is a claim against an
individual and this court does not have jurisdiction over suits against individuals
According to defendant, this court is only a forum for claims against the United States
Defendant further argues that “plaintiff lacks standing to bring a claim based on David
Rubin’s alleged misrepresentations or conduct because any injury resulting from such
was nct, in fact1 caused by defendant, the United States.” ln addition, defendant also
argues that because plaintiff appears to have alleged a claim against David Rubin for
“[m]ispresentation,” Which defendant states is a tort, this court, likewise, does not have
subject matter jurisdiction over plaintiffs tort claim.
lt is well established that this court lacks jurisdiction to hear claims against
individuais. See United States v. Sherwood, 312 U.S. 584, 588 (1941) (noting that “if the
relief sought is against others than the United States the suit as to them must be ignored
as beyond the jurisdiction of the court [United States Court of Ciaims]" (citing United
States v. Jones 131 U.S. 1, 9 (1889); Lynn v. United States, 110 F.2d 586, 588 (5th Cir.
1940); Leather & l_eidh v. United States, 61 Ct. Cl. 388 (1925))); see also Brown v. United
States, 105 F.3d at 624 (“The Tucker Act grants the Court of Federal Ciaims jurisdiction
over suits against the United States, not against individual federal officials."); Cooper v.
United Statesl 137 Fed. Cl. 432, 434 (2018) (finding that the United States Court of
Federal C|aims “lacks subject matterjurisdiction to consider plaintiffs claims to the extent
they are made against individua|s"); Robinson v. United States, 127 Fed. Cl. 417, 420
(2016) (“The court is Without jurisdiction over claims against individuals.”’ (quoting
Emerson v. United States, 123 Fed. Cl. 126, 129 (2015))); l\/lerriman v. United States,
128 Fed. Cl. 599, 602 (2016) (“The United States Court of Federal C|aims does not have
subject matter jurisdiction over claims against private individuals or state officials." (citing
United States v. Shervvood, 312 U.S. at 588)); i-licks v. United States, 118 Fed. Cl. 76, 81
(2014); Cottrell v. United States, 42 Fed. Cl. 144, 148 (1998).3 Based on plaintiffs
3 Although in unpublished opinions the United States Court of Appeais for the Federai
Circuit has continued to hold that under the TuckerAct, the United States Court of Federai
Ciaims does not have jurisdiction over individuals as defendants §_e_e Conner v. United
States, 641 F. App’x 972, 975 (Fed. Cir. 2016) (“U nder the Tucker Act, ‘if the relief sought
is against others than the United States the suit as to them must be ignored as beyond
the jurisdiction of the [Court of Federal Claims].’” (quoting United States v. Sherwood, 312
11
complaint and amended complaint, it appears that plaintiff is suing lVlr. Rubin as an
individual, Plaintiff, as previously noted, states in his complaint that his claim is “against
attorney David Rubin," who allegedly “misled” plaintiff into signing an agreement, under
which lVlr. Rubin was “to provide full legal representation" to plaintiff regarding a fraudulent
tax return. Because plaintiff seeks relief against l\/lr. Rubin as an individual, such claim
lies beyond the jurisdiction of this court and must be dismissed
Plaintiff also states in his complaint that “[lVlr. Rubinj intentionaly jsic] misled me
into signing an agreement and subsequently being liable to pay his $3,200.00 fee by way
of personal check.” Plaintiff, thus appears to be alleging that l\/lr. Rubin committed some
type of fraud or misrepresentation l\/lisrepresentation and fraud claims also sound in tort.
See Brown v. United States, 105 F.3d at 623 (holding that plaintiff-appellant’s claims for
“‘fraudulent assessment[s]’ are grounded upon fraud, which is a tort," and therefore
precludes jurisdiction over such claims by the United States Court of Federal Ciaims);
see also Hood v. United States, 127 Fed. Cl. 192, 212 (2016) (holding that plaintiffs
allegation of fraud is a tort claim excluded from this court’s jurisdiction under the Tucker
Act); Cooper v. United States, 137 Fed. Cl. at 434 (stating that the United States Court of
Federal C|aims does not havejurisdiction over plaintiffs misrepresentation claim because
such a claim is either a tort or a claim of criminal conduct); Jiron v. United States, 118
Fed. Cl. 190, 200 (2014); Salman v. United States, 69 Fed. Cl. 36, 38 (2005) (“[A]n action
for fraud lies in tort.”). As discussed above, this court lacks jurisdiction over tort claims
w 28 U.S.C. § 1491(a)(1).
To the extent that plaintiff may be asserting a criminal fraud claiml this court also
lacks subject matter jurisdiction to adjudicate that claim. The jurisdiction of the United
States Court of Federal C|aims does not include jurisdiction over criminal causes of
action See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); _s_e_e_a_l_s_o_ Cooper
v. United States, 104 Fed. Cl. 306, 312 (2012) (“[T]his court does not have jurisdiction
over [plaintiffs] claims because the court may review neither criminal matters nor the
decisions of district courts.” (internal citation omitted)); Nlendes v. United States, 88 Fed.
Cl. 759, 762, apj:_)eal dismissed 375 F. App’x 4 (Fed. Cir. 2009); Hufford v. United States,
87 Fed. Cl. 696, 702 (2009) (holding that the United States Court of Federal C|aims lacked
jurisdiction over claims arising from the violation of a criminal statute); Fullard v. United
States, 78 Fed. Cl. 294, 301 (2007) (“[leaintiff alleges criminal fraud, a subject matter
overwhich this court lacksjurisdiction" (citing 28 U.S.C. § 1491; Joshua v. United States,
17 F.3d at 379)); lV|CCullouqh v. United States, 76 Fed. Cl. 1, 4 (2006) (finding that the
United States Court of Federal C|aims lacked jurisdiction to consider plaintiffs criminal
claims), appeal dismissed1 236 F. App’x 615 (Fed. Cir.), Lh’g denied, (Fed. Cir.), ge_rL
denied, 552 U.S. 1050 (2007); lVlatthews v. United States, 72 Fed. Cl. 274, 282 (finding
that the court lacked jurisdiction to consider plaintiffs criminal claims), recons. denied, 73
Fed. Cl. 524 (2006). Further, the United States Court of Appeals for the Federal Circuit
recently wrote in an unpublished opinion that, “[t]he Court of Federal C|aims likewise lacks
jurisdiction to adjudicate claims brought under federal or state criminal statutes” Spitters
U.S. at 588)); see also lVlav v. United States, 534 F. App’x 930, 934 (Fed. Cir. 2013);
Powell v. United States, 151 F. App’x 938, 940 (2005).
12
v. United States 710 F. App’x 896, 897 (Fed. Cir. 2018) (citing Joshua v. United States,
17 F.3d at 379), Thus, because plaintiffs claims of misrepresentation or fraud against lVlr.
Rubin sound in tort or assert a criminal violation these claims also must be dismissed for
lack of subject matterjurisdiction. See Topsnik v. United States, 120 Fed. Cl. at 287.
lll. Plaintiff’s claim regarding the 2014 tax year.
Defendant extrapolated from plaintiffs complaint and amended complaint the
possibility that plaintiff is seeking a claim “Relating to the Tax Year 2014." Defendant,
however, argues that “[b]ased on what has been alleged in the pleadings whether plaintiff
intended to bring a tax refund for the year 2014 is wholly unclear.” Defendant then states
that plaintiff “failed to provide any basis as to why he would be entitled to a tax refund in
2014” and “failed to demonstrate that the requirements for bringing a tax refund suit in
this court have been satisfied.” For these reasons defendant argues that any claim
regarding the 2014 tax year should be dismissed for failure to state a claim pursuant to
RCFC 12(b)(6).
A motion to dismiss under RCFC 12(b)(6) for failure to state a claim upon which
relief can be granted “‘is appropriate when the facts asserted by the claimant do not under
the law entitle him [or her] to a remedy.”’ iVlurdock v. United States, 103 i-``ed. Cl. 389, 394
(2012) (alterations in original) (quoting Perez v. United States, 156 F.3d 1366, 1370 (Fed.
Cir. 1998)). in examining what must be pled in order to state a claim, under both RCFC
8(a)(2) and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only
state in the complaint “a short and plain statement of the claim showing that the pleader
is entitled to relief.” RCFC 8(a)(2); Fed. R. Civ. P. 8(a)(2); see also Bell Atl. Corp. v.
``fwombly, 550 U.S. at 555; TrinCo lnv. Co. v. United States, 722 F.3d 1375, 1380 (Fed.
Cir. 2013) (“To avoid dismissal under RFCF [RCFC] 12(b)(6), a party need only plead
‘facts to state a claim to relief that is plausible on its face,’ with facts sufficient to nudge
‘claims across the line from conceivable to plausible."’ (quoting Bell Atl. Corp. v. Twomblv,
550 U.S. at 555)). The United States Supreme Court in Twombly stated:
Whi|e a complaint attacked by a Rule 12(b)(6) motion to dismiss [for failure
to state a claim] does not need detailed factual allegations a plaintiffs
obligation to provide the “grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions and a formulaic recitation ofthe elements
of a cause of action will not do, §§ Papasan v. Allain, 478 U.S. 265, 286
(1986) (on a motion to dismiss courts “are not bound to accept as true a
legal conclusion couched as a factual allegation"). Factual allegations must
be enough to raise a right to relief above the speculative ievel, see 5 C.
Wright & A. lVliller, Federal Practice and Procedure § 1216, pp. 235-36 (3d
ed 2004) (hereinafter Wright & lVliller) (“[T]he pleading must contain
something more . . . than . . . a statement of facts that merely creates a
suspicion [ot] a legally cognizable right of action”), on the assumption that
all the allegations in the complaint are true (even if doubtful in fact), geg,
e.q., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief
13
ofa complaint’s factual ailegations”); Scheuerv. Rhodes, 416 U.S. 232, 236
(1974) (a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”) . . . . [W]e do not require heightened
fact pleading of specifics but only enough facts to state a claim to relief that
is plausible on its face.
Bell Atl. Corp. v. Twomblv, 550 U_S. at 555-56, 570 (footnote and other citations omitted;
brackets and omissions in origina|); see also Ashcroft v. lqbal, 556 U.S. at 678 (citing M
Ati. Corp. v. Twombly, 550 U.S. at 555-57, 570); Totes-lsotoner Corp. v. United States,
594 F.3d 1346, 1354-55 (Fed. Cir.), Lrt. denied, 562 U.S. 830 (2010); Bank of Guam v.
United States, 578 F.3d 1318l 1326 (Fed. Cir.) (“ln order to avoid dismissal for failure to
state a claiml the complaint must allege facts ‘plausibly suggesting (not merely consistent
with)’ a showing of entitlement to relief" (quoting Bell Atl. Corp. v. TWombl\/, 550 U.S. at
557)), reh’q and reh’q pp banc denied (Fed. Cir. 2009), M denied, 561 U.S. 1006
(2010); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff
must plead factual allegations that support a facially ‘plausible’ claim to relief in order to
avoid dismissal for failure to state a claim.” (quoting Bell Atl. Corp. v. Twomblv. 550 U.S.
at 570)); Ca[y v. United States, 552 F.3d 1373, 1376 (Fed. Cir.) (“The factual allegations
must be enough to raise a right to relief above the speculative level. This does not require
the plaintiff to set out in detail the facts upon which the claim is based, but enough facts
to state a claim to relief that is plausible on its face.” (citing Bell Atl. Corp. v. ``l``womblv,
550 U.S. at 555, 570)), Mg denied (Fed. Cir.), c_e;t_. denied, 557 U.S. 937 (2009);
Peninsula Grp. Capital Corp. v. United States, 93 Fed. Cl. 720, 726-27 (2010), appeal
dismissed 454 F. App’x 900 (2011); Lean Aid Soc’v of New York v, United States, 92
Fed. Cl. 285, 292, 298, 298 n.14 (2010); Hall v_ Bed Bath & Bevond, lnc.. 705 F.3d 1357,
1362 (Fed. Cir. 2013) (“the factual allegations must ‘raise a right to relief above the
speculative level’ and must cross ‘the line from conceivable to plausible.’" (quoting M
At|. Corp. v. Twombly, 550 U.S. at 555)).
VVhen deciding whether a plaintiff has failed to state a claim upon which relief can
be granted, the court assumes that the undisputed facts alleged in the complaint are true
and must draw all reasonable inferences in the non -’movant s favor. See Cambridge v.
U_nited States 558 F.3d at 1335 (citing Papasan v Allain, 478 U.S. 265 283 (1986));
Ca[y v. United States, 552 F.3d at 1376 (citing Gould lnc. v. United States 935 F.2d
1271 1274 (Fed. Cir.1991)); Anaheim Gardens v. United States 444 F.3d 1309 1315
(Fed. Cir.), Mg denied (Fed. Cir. 2006); Bovle v, United States, 200 F.3d 1369, 1372
(Fed. Cir. 2000); Perez v. United States, 156 F.3d at 1370; l~ienke v. United States, 60
F.3d at 797. lf a defendant or the court challenges jurisdiction or a plaintiffs claim for
relief however, the plaintiff cannot rely merely on allegations in the complaintl but must
instead bring forth relevant, competent proof to establish jurisdiction §_e_e l\/lcNutt v. Gen.
lVlotors Acceptance Corp. of lnd., 298 U.S. 178, 189 (1936); see also Revnolds v. Armv
& Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Therefore, although the court
must assume that the undisputed facts alleged in the complaint are true for the purposes
of the motion to dismiss and draws all reasonable inferences in the plaintiffs’ favor, the
facts alleged in the complaint must be plausible and not merely naked assertions devoid
of a factual basis wAshcron v. lgba|, 556 U.S. at 678; see also lVcheal v. Sprint Nextel
14
Corp., 501 F.3d at 1363 n.9 (Dyk, J., concurring in part, dissenting in part) (quoting C.
Wright and A. l\/liller, Federal Practice and Procedure § 1286 (3d ed. 2004)) (mere
allegations of law and conclusions of fact are insufficient to support a claim).
The United States Supreme Court has indicated that:
A taxpayer seeking a refund of taxes erroneously or unlawfully assessed or
collected may bring an action against the Government either in United
States district court or in the United States Court of Federal C|aims The
internal Revenue Code specifies that before doing so1 the taxpayer must
comply with the tax refund scheme established in the Code. That scheme
provides that a claim for a refund must be filed with the lnternal Revenue
Service (lRS) before suit can be brought, and establishes strict timeframes
forfiling such a claim.
United States v. Clintwood Elkhorn lVlininq Co., 553 U.S. 1, 4 (2008) (citations omitted);
see also RadioShack Corp. v. United States, 566 F.3d at 1360 (“[ljri the context of tax
refund suits the [Supremej Court has held that the Court of Federal Claims’ Tucker Act
jurisdiction is limited by the lnternal Revenue Code, including 26 U.S.C. § 7422(a).”).
Once a party has established compliance with 26 U.S.C. § 7422(a), the party mayl if
successful, also recover interest for its claim for refund, if successful. W Deutsche Bank
AG v. United States, 95 Fed. Cl. 423, 427 n.3 (2010) (“There is no question howeverl
that this court has subject matter jurisdiction under the Tucker Act, 28 U.S.C. § 1491
(2006)l over claims such as the present one, seeking to recover statutory interest on
income tax refunds.” (citing Brown & Williamson, Ltd. v. United States, 231 Ct. Cl. 413,
688 F.2d 747, 752 (1982))), M, 742 F.3d 1378 (Fed. Cir. 2014).
For this court to exercise jurisdiction over a plaintiffs federal tax refund claim, a
petitioning party must first satisfy the tax refund schematic detailed in Title 26 of the
internal Revenue Code, (W, sg_., 26 U.S.C. § 7422 (2012) and 26 U.S.C. § 6511
(2012)), which establish that a claim for refund must be filed with the lRS before filing suit
in federal court, as well as strict deadlines for filing such claims §eg United States v.
C|intwood Elkhorn l\/linind Co., 553 U.S. at4; Kiselis v. United States, 131 Fed. Cl. 54, 60
(2017) (“To establish jurisdiction Plaintiff must establish that he filed an administrative
refund claim With the lRS prior to filing suit in this Court."); Fremuth v. United States 129
Fed. Cl. 684, 688 (2016) (“This Court’s exercise of [tax refund] jurisdiction is subject,
however, to several statutory and jurisprudential prerequisites.”); Dumont v. United
States, 85 Fed. Cl. 425, 428 (“To recover underthe TuckerAct, a plaintiff must adhere to
the requirements of 26 U.S.C. § 7422(a), which states that ‘no such suit shall be
maintained in any court... until a claim for refund or credit has been duly filed with the
Secretary.’" (quoting 26 U.S.C. § 7422(a))), §_ffg, 345 F. App’x. 586 (Fed. Cir. 2009); §
also United States v. Dalm, 494 U.S. 596, 609-10, Mg denied, 495 U.S. 941 (1990);
Smith v. United States 111 Fed. Cl. 740l 743 (2013) (noting that Congress intended for
26 U.S.C. § 7422(a) to apply broad|y); Buser v. United States, 85 Fed. Cl. 248, 256
(2009). l\/loreover, for a refund claim, the court only may hear claims for Which the
petitioning taxpayer has fulfilled all of his or her tax liabilities for the tax year in question
15
before the refund claim is heard Flora v. United States, 357 U.S. 63, 72-73 (1958) (M
j), _a_f_E o_nMg, 362 U.S. 145 (Flora ll), @t_ilg denied, 362 U.S. 972 (1960). ln Flora ll,
the United States Supreme Court stated that 28 U.S_C. § 1346(a)(1) requires “payment
of the full tax before suit . . . Flora ll, 362 U.S. at 150, 177; see also Ledford v. United
States, 297 F.3d 1378, 1382 (Fed. Cir. 2002) (affirming United States Court of Federal
Claim’s dismissal of pro-se plaintiffs tax refund suit for lack of subject matter jurisdiction
when plaintiff did not allege that he had paid his taxes for the years in Which he sought a
tax refund and when plaintiffs tax returns submitted to the court also showed that plaintiff
did not pay any taxes for those years); Shore v_ United States, 9 F.3d 1524l 1526 (Fed.
Cir. 1993) (“The full payment requirement of Section 1346(a)(1) and Elpra applies equally
to tax refund suits brought in the Court of Federal Claims . . . (citing Tonasket v. United
States, 218 Ct. Cl. 709, 711-12, 590 F.2d 343 (1978))).
As noted above, before filing a tax refund claim in federal court, a plaintiff is
required to file a claim with the lRS for the amount of the alleged refund, pursuant to 26
U.S.C. § 7422(a), which states:
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 authorityl 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); see also Computervision Corp. v. United States, 445 F.3d 1355,
1363 (Fed. Cir.), reh’q and reh’q pp banc denied, 467 F.3d 1322 (Fed. Cir. 2006), M
denied, 549 U.S. 1338 (2007); Cooper v. United States, 123 Fed. Cl. 226, 232 (2015)
(holding that because plaintiffs tax forms did not comply with the requirements of 26
U.S.C. § 7422, the returns could not constitute duly filed refund claims). l\lloreover, when
pleading a claim for a tax refund, a party must include:
(A) a copy ofthe claim for refund, and
(B) a statement identifying:
(i) the tax year(s) for which a refund is sought;
(ii) the amount, date, and place of each payment to be
refunded;
(iii) the date and place the return was filed , if any;
(iv) the name, address and identification number of the
taxpayer(s) appearing on the return;
16
(v) the date and place the claim for refund was filed; and
(vi) the identification number of each plaintiff if different from
the identification number of the taxpayer.
iach 9(m)(2)(A)-(s) (2018).
'l'o the extent that plaintiff is attempting to assert a tax refund claim for the 2014
tax year, plaintiff thus far, has failed to state a claim in either his original complaint or his
amended complaint Plaintiff did not clearly state in his complaint that he is seeking a tax
refund for the 2014 year_ Further, despite the court’s February 28, 2018 Order, which
required plaintiff to clarify any potential tax refund claim he may seeking, plaintiff did not
state in his amended complaint that he was seeking a 2014 tax refund claim. Plaintiff also
did not attach to his amended complaint a copy of his 2014 tax refund claim or provide a
clear “statement" regarding various tax refund details as required under RCFC 9(m).
Plaintiffs only reference to a 2014 tax return was in connection with his asserted claim
against l\/lr. Rubin. Plaintiff stated in his amended complaint that “[d]uring the meeting lVlr.
Rubin assured the plaintiff that the 2014 tax return which was filed about February 16,
2015, would be recovered of $2,509.00.” Plaintiff only recent|y, in his August 10, 2018
filing, vaguely alluded to “refunds," stating that, “[d]ue to fraudulent activity on my tax
account, both years 2011 and 2014 were adversely affected therefore claims resulting in
refunds for both years should be allowed on behalf of Plaintiff" Plaintiff, however,
provided no additional information regarding the “refunds" alluded to in his August 10,
2018 filing that would allow the court to decipher what type of refund plaintiff is seeking
Whi|e the court recognizes that plaintiff is proceeding j@ Y, the court is under no duty
to "create a claim” that has not been included in the prp sp complaint g Lengen v.
United States 100 Fed. Cl. at 328. Even based on a very liberal reading of the plaintiffs
complaint and amended complaint, plaintiff has not asserted a valid, reviewable 2014 tax
refund claim. Therefore, to the extent that plaintiff is trying to assert a 2014 tax refund
claim, such claim should be dismissed at this time, without prejudicel for failure to state a
claim.
l\l. Plaintiff’s claim regarding the 2011 tax year.
Defendant also has extrapolated from plaintiffs vague complaint and vague
amended complaint that plaintiff is seeking a “Tax Refund for the Year 2011.” Defendant
also notes that plaintiffs 2011 tax refund claim may also give rise to “a lost or stolen
refund check” action pursuant to 31 U.S.C. § 3343 (2012). To the extent that plaintiff is
attempting to assert a tax refund claim for the 2011 tax year, plaintiff thus far, has failed
to state a claim in either his original complaint or his amended complaint. Plaintiff did not
state in his complaint or amended complaint that he is seeking a tax refund for the 2011
tax year_ Plaintiff only explicitly states in his complaint and amended complaint that he is
seeking a claim of “negligence" against the lRS and a vaguely worded misrepresentation
or fraud claim against David Rubin associated with the 2014 tax year, Further, plaintiff did
not include a copy of plaintiffs 2011 tax refund or a clear “statement" regarding the alleged
tax refund claim in his complaint or amended complaint, as required when asserting a tax
17
refund claim in this court. g RCFC 9(m). instead plaintiff randomly included in his
amended complaint some tax information regarding an allegedly fraudulently filed 2011
amended tax return plaintiffs tax identification numberl plaintiffs address at the time of
filing his 2011 tax return the address listed on an allegedly fraudulently filed 2011
amended tax return and the location in Which the allegedly fraudulent 2011 amended tax
return was filed Plaintiff has recently and still only vaguely alluded in his August 10, 2018
filing to “refunds,” stating that “[d]ue to fraudulent activity on my tax account, both years
2011 and 2014 were adversely affected therefore claims resulting in refunds for both
years should be allowed on behalf of the Plaintiff.” As noted above, however, plaintiff did
not provide any additional specificity or information regarding the “refunds” he is seeking
for the 2011 and 2014 years that would allow the court to decipher what type of refund
plaintiff is seeking As noted above, the court is under no duty to “create a claim” that has
not been included in the ng§_e complaint See l.enqen v. United States, 100 Fed. Cl. at
328. Even based on a liberal reading of plaintiffs complaint and amended complaint,
plaintiff has failed to assert a valid reviewable tax refund claim for 2011. Thus, to the
extent plaintiff is currently asserting a 2011 tax refund claim, such claim should be
dismissed at this time, Without prejudice, for failure to state a claim.
Regarding defendant’s assertion that plaintiff may be attempting to bring a lost or
stolen check claim, defendant states in its June 28, 2018 partial motion to dismiss that
“jt]hough the basis of plaintiffs claim for the 2011 tax year is not clear, there are causes
of action for a lost or stolen refund check. ln particular, 31 U.S.C. § 3343 provides a right
of recovery for individuals whose United States Treasury check has been lost or stolen.”
To the extent that plaintiff may have had in mind a lost or stolen check claim pursuant to
31 U.S.C_ § 3343, plaintiffs claim fails for failure to state a claim. The statute at 31 U.S.C.
§ 3343, which is titled “Check forgery insurance fund," states:
(a) The Department of the Treasury has a special deposit revolving fund
the “Check Forgery insurance Fund”. Necessary amounts are hereafter
appropriated to the Fund out of any moneys in the Treasury not
othen/vise appropriated and shall remain available until expended to
make the payments required or authorized under this section The Fund
consists of amou ntsm
(1) appropriated to the Fund; and
(2) received under subsection (d) of this section
(b) The Secretary of the Treasury shall pay from the Fund to a payee or
special endorsee of a check drawn on the Treasury or a depositary
designated by the Secretary the amount of the check without interest if
in the determination of the Secretary the payee or special endorse1
establishes that--
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(1) the check was lost or stolen without the fault of the payee or a
holder that is a special endorsee and whose endorsement is
necessary for further negotiation;
(2) the check was negotiated later and paid by the Secretary or a
depositary on a forged endorsement of the payee’s or special
endorsee’s name; and
(3) the payee or special endorsee has not participated in any part of
the proceeds of the negotiation or payment.
31 U.S.C. § 3343(a)-(b).
As a judge of this court explained:
To recover under § 3343, the following requirements must be met: (1) the
check is lost or stolen without the fault of the payee or a holder that is a
special endorsee and whose endorsement is necessary for further
negotiation (2) the check is negotiated and paid by the Treasurer on a
forged endorsement of payee’s or special endorsee’s name, and (3) the
payee or special endorsee has not participated directly or indirectly in the
proceeds of such negotiation or payment.
Curtin v. United States, 91 Fed. Cl. 683, 688 (2010); see also Olson v. United States, 194
Ct. Cl. 297, 302-03, 437 F.2d 981, 983-84 (1971); l_au v. United States, No. 01-150T,
2002 WL 535808, *1 n.3 (Fed. Cl. Feb. 22, 2002) (unpub|ished opinion) (“31 U.S.C.
§ 3343 (1994 8 Supp.V1999), allows the Treasury to issue replacement checks from the
Check Forgery insurance Fund to taxpayers once the iRS determines that the payee’s
endorsement was forged."). For example, in Hill v. United States, a judge of this court
ordered the defendant to re-issue a stolen check to plaintiff pursuant to 31 U.S.C. § 3343
and explained that:
The facts establish that Plaintiff has met the conditions established by 31
U.S.C. § 3343. First, the 2007 refund check was “deliberately redirected by
another individuai" “without Plaintiffs knowledge." Second, that individual
cashed the check, endorsing it under “i\/lark l-liil.” Third, “according to the
OSHP investigation,” Plaintiff was not aware ofthe individual impersonating
him, and therefore hadn’t “participated in any part of the proceeds of the
negotiation or payment.”
Hill v. United States 118 Fed. Cl. 373, 381 n.4, 385 (2014) (internal references omitted).
As noted above, in order for a party to recover under 31 U.S.C. § 3343, a party
must prove that a “check was lost or stolen,” and that the party is “without the fault.” _S_e_e
31 U.S.C. § 3343(b); see also Curtin v. United States, 91 Fed. Cl. at 688. Plaintiff does
not specifically allege in his complaint or amended complaint that he has lost a check or
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that someone has stolen a check from him. Although plaintiff briefly mentioned in his
August 10, 2018 filing that “[i]n this case a Treasury check was not merely stolen my
identify was[4] as supported by a Phiiadeiphia Police Report," plaintiff does not state that
the Treasury check belonged to him, nor does plaintiff provide additional information
regarding the stolen “Treasury check.” Further, in order to recover under 31 U.S.C.
§ 3343, the check must have a “forged endorsement of the payee’s or special endorsee’s
name.” B 31 U.S.C. § 3343(b). Plaintiff does not allege in his complaint or amended
complaint that someone presented a forged endorsement of plaintiffs name on any
document, let alone a lost or stolen check. As this court has previously noted, the court
is under no duty to “create a claim” that has not been included in a w ge complaint. §§
Lenqen v. United States, 100 Fed. Cl. at 328. Thusl to the extent plaintiff is currently
attempting to assert a lost or stolen check claim, the court finds that such claim should be
dismissed at this time, without prejudice, for failure to state a claim.
CONCLUSION
The court GRANTS defendants June 28, 2018 partial motion to dismiss the tort
and misrepresentation claims regarding the lRS and David Rubin and dismisses without
prejudice, all the other claims plaintiff may have been attempting to assertl Plaintiff’s
complaint is DlSMiSSED. The Clerk of Court shall enter JUDGIV|ENT consistent With this
opinion
lT lS SO ORDERED. //'é'A M_
NIAR|AN BLANK HORN
Judge
4 To the extent that plaintiff is attempting to assert a claim for identity theft, such claim
sounds in tort for which this court lacks jurisdiction See Krukowski v. United States, 129
Fed. Cl. 440, 443 (2016) (“ldentity theft is also a tort over which this Court does not have
jurisdiction.”); Aldridqe v. United States, 67 Fed. Cl. 113l 120 (2005) (“identity theft is also
a tort. . . . Therefore the United States Court of Federal Claims does not have jurisdiction
over this claim.” (internal citations omitted)).
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