Whiteford v. United States

In the United States Court of Federal Claims
No. 19-1689
(Filed: 10 April 2020)
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JOSEPH BRIAN WHITEFORD AND *
GWENN CATHERINE WHITEFORD, *
*
Plaintiffs, * Pro se; RCFC 12(b)(1); RCFC 12(b)(6);
* Subject-Matter Jurisdiction; Tax Refund
v. * Claim; In Forma Pauperis.
*
*
THE UNITED STATES, *
*
Defendant. *
*
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OPINION AND ORDER
Joseph B. Whiteford and Gwenn C. Whiteford, pro se, all of Murrysville, PA.
Margaret E. Sheer, Trial Attorney, with whom were Richard E. Zuckerman, Principal
Deputy Assistant Attorney General, and David I. Pincus, Chief, Court of Federal Claims Section,
Tax Division, U.S. Department of Justice, all of Washington, D.C.
I. Introduction
Pro se plaintiffs Joseph Brian Whiteford (“Mr. Whiteford”) and Gwenn Catherine
Whiteford (“Mrs. Whiteford”), hereafter collectively referred to as “plaintiffs,” filed a complaint
alleging the government unlawfully collected and withheld their assets in connection with the
assessment of certain federal income tax for tax years 2013–2018. See generally Compl. at 2.
Plaintiffs seek “their withholdings since 2013 which amounts to $148,414.48” and a “$1,000,000
fine under [Internal Revenue Code §] 7433(b)(1) for reckless and malicious actions taken by the
Defendant,” for a total of “$1,148,414.48 (plus applicable interest).” Id. at 3–4. Plaintiffs
further filed separate motions to proceed in this matter in forma pauperis. See Application to
Proceed In Forma Pauperis, ECF No. 4 (“Mr. Whiteford’s Appl.”); Application to Proceed In
Forma Pauperis, ECF No. 5 (“Mrs. Whiteford’s Appl.”).
The government moved to dismiss this matter pursuant to Rules 12(b)(1) and 12(b)(6) of
the Rules of the United States Court of Federal Claims (“RCFC”), ECF No. 7 (“Def.’s Mot.”).
For the following reasons, the Court: (1) GRANTS plaintiff Joseph B. Whiteford’s motion to
proceed in forma pauperis; (2) GRANTS plaintiff Gwenn C. Whiteford’s motion to proceed in
forma pauperis; (3) GRANTS the government’s motion to dismiss; and (4) DISMISSES the
complaint.
II. Factual and Procedural History 1
A. Plaintiffs’ Tax Court Claims
1. Plaintiffs 2017 Joint Tax Court Petition
On 27 February 2017, plaintiffs jointly filed a petition in the United States Tax Court
challenging notices of deficiency and underpayment penalties pursuant to Internal Revenue Code
(“IRC”) § 6662(a) for tax years 2013 and 2014. Def.’s Mot., Ex. A at 2, Ex. B at 6. On 13
August 2018, the Tax Court upheld the notices of deficiency and application of a penalty under
IRC § 6662(a). See id. at Ex. B. In upholding the notices and penalty, the Court noted, “[a]t trial
petitioners presented no documentary evidence to support their position” but instead “relied
solely upon the testimony of [Mr. Whiteford], which did not address the substantive issues of the
case.” Id., Ex. B at 8. In holding, the Court noted it would “not painstakingly address
petitioner’s tax-protester arguments,” finding the “amounts of the deficiencies in the notice of
deficiency, which in this case equal the understatements, were $13,297 for 2013 and $16,570 for
2014, both of which exceed $5,000 and 10% of the tax required to be shown” to impose a
penalty. Id., Ex. B at 9–10.
2. Mr. Whiteford’s Individual 2019 Tax Court Petition
On 19 June 2019, Mr. Whiteford, individually, filed a petition in the Tax Court alleging
he “[n]ever received [a] Notice of Deficiency, or [a] Notice of Determination Concerning
Collection Action” for years “1995 to 2019.” Id., Ex. C at 13. On 13 August 2019, respondent
Internal Revenue Service (“IRS”) filed a motion to dismiss for lack of jurisdiction and to impose
a penalty under IRC § 6673. The IRS’ motion argued the Tax Court did not have jurisdiction
because “no notice of deficiency or notice of determination was issued to [Mr. Whiteford] for the
taxable years 1995 through 2019 within 150 days or 30 days, respectively, of the filing of the
petition.” Compl., Ex. A at 1.
On 13 September 2019, the Tax Court granted the IRS’s motion to dismiss Mr.
Whiteford’s petition, stating “respondent’s Motion to Dismiss for Lack of Jurisdiction . . . is
granted, and, with respect to each year placed in issue in the petition, this case is dismissed for
lack of jurisdiction upon the grounds stated in respondent’s motion.” Id.
3. Mrs. Whiteford’s Individual 2019 Tax Court Petition
On 22 July 2019, Mrs. Whiteford filed a separate, but similar petition to Mr. Whiteford’s
petition for tax years “1996 to 2019.” Def.’s Mot., Ex. D at 17. On 4 September 2019, the IRS
filed a motion to dismiss for lack of jurisdiction, arguing “no notice of deficiency . . . to form the
basis for a petition to this Court, had been sent to petitioner with respect to taxable years 1996
1
The facts recited in this Opinion and Order are taken from: the complaint and the exhibits attached thereto; the
government’s motion to dismiss and the exhibits attached thereto; and plaintiffs’ response to the government’s
motion to dismiss, ECF No. 8, (“Pl.’s Resp.”) and exhibits attached thereto.
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through 2019, nor had [the Internal Revenue Service] made any other determination with respect
to petitioner’s tax years 1996 through 2019 . . . that would confer jurisdiction on the Court.”
Compl., Ex. B at 1.
On 25 September 2019, the Tax Court granted the IRS’s motion to dismiss Mrs.
Whiteford’s petition. Id. The Tax Court found “petitioner did not deny the jurisdictional
allegations . . . regarding lack of a pertinent notice or determination, nor did it suggest the
existence of any relevant notice or determination. To the contrary, petitioner proffered oft-
rejected challenges to the authority of the [IRS] in the context of income tax returns and related
assessments.” Id. The Court saw “no need to catalog petitioner’s arguments and painstakingly
address them.” Id. The Court granted the IRS’s motion and dismissed the case “for lack of
jurisdiction with respect to each year placed in issue in the petition upon the ground stated in
respondent’s motion.” Id., Ex. B at 2.
B. Plaintiffs’ Claims in This Court
On 30 October 2019, plaintiffs commenced this action and filed two motions to proceed
in forma pauperis. See Compl.; Mr. Whiteford’s Appl.; Mrs. Whiteford’s Appl. In the
complaint, plaintiffs allege the government caused them injury by taking “[p]laintiff’s property
since 1995 all the while with no Jurisdiction as evidence of Tax Court orders and violating
Plaintiff’s 4th Amendment Rights.” 2 Compl. at 2. Additionally, plaintiffs allege in “2018 [the]
IRS credited Plaintiff’s withholdings, which was unequivocal proof our withholdings were being
taken unlawfully.” Id. For relief, plaintiffs seek “$1,148,414.48 (plus applicable interest).” Id.
at 4.
In support of their complaint, plaintiffs attach four exhibits: (1) Exhibit A, the 13
September 2019 United States Tax Court Order Of Dismissal For Lack Of Jurisdiction of Joseph
B. Whiteford’s petition; (2) Exhibit B, the 25 September 2019 United States Tax Court Order Of
Dismissal For Lack Of Jurisdiction of Gwenn C. Whiteford’s petition; (3) Exhibit C, a 2018
letter from the IRS to Joseph B. Whiteford informing him of a 2018 overpayment and application
of funds to an unpaid balance; and (4) Exhibit D, a 3 May 2019 letter from the IRS informing
plaintiffs their claim for credit for the requested tax period was disallowed. Id., Exs. A–D.
Plaintiffs additionally attach a letter as an exhibit to their response to the government’s motion to
dismiss. See Pl.’s Resp., Ex. E. The letter, from plaintiffs to the IRS, includes jointly filed tax
returns from 2018 seeking a refund of payments “due to the fact [plaintiffs’] employers provided
W-2’s/1099 which erroneously” listed payments as wages. Id., Ex. E at 1.
On 31 December 2019, the government filed a motion to dismiss pursuant to rules
12(b)(1) and 12(b)(6) of the RCFC. See Def.’s Mot. at 1. On 27 January 2020, plaintiffs filed a
response to the government’s motion to dismiss. See Pl.’s Resp. On 13 February 2020, the
2
Plaintiffs allege in their complaint the government has taken their property since 1995, but for relief seek only their
“withholdings since 2013 which amounts to $148,414.48.” See Compl. at 2. Plaintiffs have failed to attach any
supporting documentation for all tax years prior to 2013. See Compl., Exs. A–D; Pl.’s Resp., Exs. A–E (showing
plaintiffs did not provide proof of a tax refund claim for the remaining tax years at issue). Plaintiffs clarify in their
response to the government’s motion to dismiss that “[o]ur claim is for the return of all withholdings [for] tax years
2013-2018.” Pl.’s Resp. at 6.
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government filed a reply to plaintiffs’ response to its motion to dismiss. See Reply in Further
Support of the Motion of the United States to Dismiss the Complaint, ECF No. 9 (“Def.’s
Reply”).
These matters having been fully briefed, the Court now addresses the pending motions.
III. Discussion
A. Pro Se Litigants
Pro se parties are granted greater leeway than litigants represented by counsel. See
Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding that pro se complaints are held to “less
stringent standards than formal pleadings drafted by lawyers”). This Court further recognizes
that “[w]hile a court should be receptive to pro se plaintiffs and assist them, justice is ill-served
when a jurist crosses the line from finder of fact to advocate.” Demes v. United States, 52 Fed.
Cl. 365, 369 (2002). Accordingly, the Court may excuse certain ambiguities in plaintiffs’
complaint, but the Court “does not excuse its failures, if such there be.” See Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995).
In addition, this Court has long recognized “the leniency afforded to a pro se litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.”
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). The pro se plaintiff—like any
other plaintiff—must establish the Court's jurisdiction to consider a claim. Riles v. United
States, 93 Fed. Cl. 163, 165 (2010).
1. Plaintiffs May Proceed In Forma Pauperis
Plaintiffs first request the Court allow them to proceed in forma pauperis. Pursuant to 28
U.S.C. § 1915(a)(1), “any court of the United States may authorize the commencement . . . of
any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person
who submits an affidavit that includes a statement . . . that the person is unable to pay such fees
or give security therefor.” A plaintiff need not “be absolutely destitute to enjoy the benefit of the
statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). An affidavit
demonstrating a plaintiff is unable to pay the fee or provide security, yet “still be able to provide
himself and dependents with the necessities of life,” is sufficient. Id.; see also Waltner v. United
States, 93 Fed. Cl. 139, 143 (2010) (quoting Fiebelkron v. United States, 77 Fed. Cl. 59, 62
(2007)) (stating the proper inquiry is whether “‘paying such fees would constitute a serious
hardship on the plaintiff, not that such payment would render plaintiff destitute’”).
Mr. Whiteford states in his application to proceed in forma pauperis: he currently
receives a gross monthly salary of $3,100 ($2,700 net); annual rental income of $32,400 “which
covers the mortgage, taxes, and upkeep of 2 rental properties” with “[n]o profit;” “less than
$100” in cash or in a checking, savings, or inmate account; and further provides for four
children. See Mr. Whiteford’s Appl. at 1–2. Mrs. Whiteford states in her application to proceed
in forma pauperis: she currently receives a gross monthly salary of $3,400 ($2,800 net); annual
rental income of $32,400 “which covers the mortgage, taxes, and upkeep of 2 rental properties”
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with “[n]o profit;” less than $1,000 in cash or in a checking, savings, or inmate account; and
further provides for four children. Mrs. Whiteford’s Appl. at 1–2.
Under these circumstances, plaintiffs have sufficiently demonstrated they are unable to
pay the Court’s filing fee. Plaintiffs’ respective applications to proceed in forma pauperis are
therefore GRANTED.
B. The Government’s Motion to Dismiss
The government moves to dismiss plaintiff’s complaint pursuant to RCFC 12(b)(1) and
RCFC 12(b)(6). See Def.’s Mot. at 1.
1. RCFC 12(b)(1) – Lack of Subject-Matter Jurisdiction
In considering a motion to dismiss for lack of subject-matter jurisdiction, “a judge must
accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551
U.S. 89, 94 (2007); see also Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.
Cir. 2011) (“In determining jurisdiction, a court must accept as true all undisputed facts asserted
in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”).
Plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the
evidence.” Reynolds v. Army and Air Force Exchange Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
“If the court finds that it lacks jurisdiction over the subject matter, it must dismiss the claim.”
Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).
The ability of the Court of Federal Claims to entertain suits against the United States is
limited, and the waiver of immunity “may not be inferred, but must be ‘unequivocally
expressed.’” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (quoting
United States v. Mitchell, 445 U.S. 535, 538 (1980)). The Tucker Act grants this Court
jurisdiction over “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 . . . is itself only a jurisdictional
statute; it does not create any substantive right enforceable against the United States for money
damages. . . . [T]he Act merely confers jurisdiction upon it whenever the substantive right
exists.” United States v. Testan, 424 U.S. 392, 398 (1976). For tax disputes, this Court’s
jurisdiction is generally limited to tax refund suits. See 28 U.S.C. § 1346(a)(1) (granting the
Court of Federal Claims concurrent jurisdiction with federal district courts over “[a]ny civil
action against the United States for the recovery of . . . any penalty claimed to have been
collected without authority or any sum alleged to have been excessive or in any manner
wrongfully collected under the internal-revenue laws”).
In such tax suits, the Court of Federal Claims jurisdiction is limited to those situations
where the taxpayer has complied with the relevant provisions of the Internal Revenue Code. See
United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008) (citing United States v.
Dalm, 494 U.S. 596, 609–10 (1990)) (“The Internal Revenue Code specifies that before [filing in
the Court of Federal Claims], the taxpayer must comply with the tax refund scheme established
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in the Code.”). To meet this Court’s jurisdictional requirements in a tax refund suit, a plaintiff
must: (1) satisfy the full payment rule; (2) timely file a tax refund claim with the IRS; and (3)
“provide the amount, date, and place of each payment to be refunded,” along with “a copy of the
refund claim.” Fry v. United States, 72 Fed. Cl 500, 510 (2006). The “full payment rule”
requires a taxpayer to fully pay their federal income tax at issue prior to bringing suit in the
Court of Federal Claims. See Flora v. United States, 362 U.S. 145, 150 (1960); see also Shore v.
United States, 9 F.3d 1524, 1527 (Fed. Cir. 1993) (“The Flora full payment rule requires that
taxpayers prepay the tax principal before the Court of Federal Claims will have subject matter
jurisdiction over their tax refund action under § 1491.”).
As specified in the Internal Revenue Code, before seeking a refund, “the taxpayer must
comply with the tax refund scheme established . . . [which] provides that a claim for a refund
must be filed with the [IRS] before suit can be brought, and establishes strict timeframes for
filing such a claim.” Clintwood Elkhorn, 553 U.S. at 4. 26 U.S.C. § 7422(a) provides the
applicable requirements:
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 authority, 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.
Accordingly, this Court does not possess subject-matter jurisdiction to consider a claim to
recover internal revenue tax unless the taxpayer first files a claim for a tax refund with the IRS.
See Strategic Hous. Fin. Corp. of Travis Cty. v. United States, 608 F.3d 1317, 1324 (Fed. Cir.
2010) (“[A] party seeking to recover any internal-revenue tax, penalty, or sum from the United
States must pursue and exhaust its administrative remedies pursuant to the IRS's regulations prior
to filing a complaint in federal court.”). “Pursuant to I.R.C. § 6512(a), [the Court of Federal
Claims] lacks jurisdiction over a tax refund case if the plaintiff seeks a refund for the same tax
year covered in a deficiency notice and in the plaintiff’s petition to the Tax Court.” Cheesecake
Factory Inc. v. United States, 111 Fed. Cl. 686, 695 (2013).
A plaintiff filing a tax refund suit in this Court must include the following with the
complaint:
(A) a copy of the 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 [under seal] of the
taxpayer(s) appearing on the return;
(v) the date and place the claim for refund was filed; and
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(vi) the identification number [under seal] of each plaintiff, if different from
the identification number of the taxpayer.
RCFC 9(m).
Lastly, the Federal Circuit has held the Court of Federal Claims is without jurisdiction to
entertain a claim for damages alleging unlawful collection activities of the IRS; such claims must
be brought before a United States district court. See Ledford v. United States, 297 F.3d 1378,
1382 (Fed. Cir. 2002) (affirming dismissal of plaintiff’s claim for damages based on the IRS’s
collection activities as outside the Court’s subject matter-jurisdiction).
2. RCFC 12(b)(6) – Failure to State a Claim
A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC
12(b)(6). See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (“A motion to
dismiss . . . for failure to state a claim upon which relief can be granted is appropriate when the
facts asserted by the claimant do not entitle [the claimant] to a legal remedy.”). To survive a
motion to dismiss for failure to state a claim, the complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Such a claim must be sufficient for the defendant to have “fair notice” of the claim and
the “grounds upon which it rests.” Id. at 555 (quoting Fed. R. Civ. P. 8(a)(2)). A plaintiff must
“plead[] factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
IV. Analysis
A. Jurisdiction Over Plaintiff’s Claims
1. Jurisdiction Over Plaintiffs’ “Takings” Claim
Plaintiffs allege the government took their “property since 1995 all the while with no
Jurisdiction as evidence of Tax Court orders and violating Plaintiff’s 4th Amendment Rights.”
Compl. at 2. Under Federal Circuit precedent, claims for damages for the unlawful collection
activities of the IRS must be brought before a United States district court. See Ledford, 297 F.3d
at 1382 (affirming dismissal of plaintiff’s claim for damages based on the IRS’s collection
activities as outside the Court’s subject matter-jurisdiction); see also Zolman v. United States,
Nos. 17-1901, 17-1902, 2018 WL 1664690, at *2 (Fed. Cl. April 6, 2018) (holding that only the
district courts, and not the Court of Federal Claims, possess subject-matter jurisdiction to
consider damages claims resulting from unauthorized collection actions). Therefore, this Court
is without jurisdiction to entertain a claim for damages flowing from the alleged unlawful
collection activities of the IRS.
To the extent plaintiffs allege a Fourth Amendment violation, this Court is also without
jurisdiction to hear such a claim. In the context of a challenge to tax collection suits under the
Fourth Amendment, the Federal Circuit has held “the Fourth Amendment is not a money-
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mandating constitutional provision, [and so the Court of Federal Claims] lacks subject matter
jurisdiction.” Johnson v. United States, 127 Fed. Cl. 529, 537 (2016) (citing Brown v. United
States, 105 F.3d 621, 623 (Fed. Cir. 1997)). 3
Plaintiffs additionally argue the Tax Court’s dismissal orders demonstrate the IRS lacked
taxing authority and satisfy this Court’s jurisdictional requirement. See Compl. at 2. This
argument reflects a fundamental misunderstanding of the Tax Court’s dismissal orders. Similar
to this case, in Wall v. United States, the plaintiff argued the Tax Court’s dismissal for lack of
jurisdiction meant that the IRS lacked the authority to enforce its liens. 141 Fed. Cl. 585, 589–
90 (2019). This Court held the Tax Court’s dismissal order “concluded that the Tax Court
lacked jurisdiction over plaintiff's petition, which was, at that time, pending before the Tax
Court, not that the IRS lacked the ability to place liens on plaintiff’s assets.” Id. at 597. In this
case, the Tax Court’s 13 September 2019 and 25 September 2019 orders were only concerned
with the Tax Court’s own ability to entertain plaintiffs’ claims for relief—not whether the IRS
had the requisite taxing authority. The Tax Court’s ruling stands only for the proposition that the
Tax Court lacked jurisdiction to consider plaintiffs’ respective petitions due to the failure to
satisfy jurisdictional requirements. Plaintiffs may not rely on the Tax Court dismissal orders to
demonstrate the IRS lacked taxing authority and thus satisfy this Court’s jurisdictional
requirements.
Finally, plaintiffs allege due process violations, stating: “[d]ue process must be in
evidence before property can be ordered to be seized, taken, or withheld in the name of tax . . .
[and] [p]laintiffs were denied all required legal due process of Law entirely, and without
possessing any true statutory authority under the statutes, necessary to make seizures of property
from [plaintiffs].” Pl.’s Resp. at 7 (emphasis omitted). “To be cognizable under the Tucker Act,
the claim must be for money damages against the United States, and the substantive law must be
money-mandating.” Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013). “The law is
well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do not
mandate the payment of money and thus do not provide a cause of action under the Tucker Act.”
Id. Therefore, plaintiffs’ due process claims are beyond the jurisdiction of this Court.
2. Plaintiffs’ Tax Refund Claim
i. Tax Years 2013, 2014, and 2016
3
Plaintiffs also allege a Fifth Amendment takings claim due to “[b]latant and intentional violations of federal
Internal Revenue law.” Pl.’s Resp. at 4. To satisfy Court of Federal Claims Jurisdiction, “[i]t is undisputed that the
Takings Clause of the Fifth Amendment is a money-mandating source [of law] for purposes of Tucker Act
jurisdiction.” Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008). A court must “‘look to the
true nature of the action instead of merely relying on the plaintiff’s characterization of the case’” to “determin[e] the
existence and grounds for [its] jurisdiction.” Doe v. United States, 372 F.3d 1308, 1315 (Fed. Cir. 2004) (quoting
Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)). In this case, plaintiffs assert numerous claims, including
claims for fraud and their “withholdings . . . being taken unlawfully.” See generally Compl; Pl.’s Resp. To satisfy a
takings claim, however, the “claimant must concede the validity of the government action which is the basis of the
taking claim to bring suit under the Tucker Act.” Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir.
1993). Here, plaintiffs’ takings claims are based upon allegations of fraud and unlawful withholding by the IRS.
See Compl. at 2. To the extent plaintiffs allege any takings claims, such claim must be dismissed as plaintiffs do not
“concede the validity of the government action which is the basis of the taking claim.” Tabb Lakes, 10 F.3d at 802.
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Plaintiffs seek a tax refund for tax years 2013, 2014, and 2016. See Compl. at 2. To
satisfy this Court’s jurisdictional requirements, plaintiffs must have: (1) timely filed a refund
claim; and (2) fully paid his or her tax liability. Tiernan v. United States, 113 Fed. Cl. 528, 531
(2013) (discussing the Court of Federal Claims jurisdictional requirements as requiring plaintiff
to file a claim with the Secretary of the treasury and “have fully paid the pertinent tax liability”);
see also Shore, 9 F.3d at 1527 (finding taxpayers must prepay tax principal prior to suit in the
Court of Federal Claims). For tax years 2014 and 2016, plaintiffs failed to comply with the full
payment rule, as IRS records reflect plaintiffs have unpaid tax liabilities. See Def.’s Mot., Ex. F
at 28–31, 36–38. Therefore, this Court lacks jurisdiction over any alleged refund claim for tax
years 2014 and 2016.
Additionally, for tax years 2013 and 2014, plaintiffs previously litigated these years in
Tax Court. See Def.’s Mot., Ex. B at 5–11. “Pursuant to I.R.C. § 6512(a), [the Court of Federal
Claims] lacks jurisdiction over a tax refund case if the plaintiff seeks a refund for the same tax
year covered in a deficiency notice and in the plaintiff’s petition to the Tax Court.” Cheesecake
Factory Inc., 111 Fed. Cl. at 695. Plaintiffs therefore cannot seek to revive these claims for the
entirety of their withholding in this Court. See Smith v. United States, 495 F. App’x. 44, 48 (Fed.
Cir. 2012) (per curiam) (explaining that I.R.C. § 6512(a) precludes the Court of Federal Claims
from exercising jurisdiction over “previously filed Tax Court petitions seeking redetermination
of the same liabilities”). Therefore, this Court further lacks jurisdiction over plaintiffs’ claims
for tax years 2013 and 2014 as a result of plaintiffs’ previously filed petitions in the Tax Court.
ii. Tax Years 2015 and 2017
Plaintiffs seek a tax refund for tax years 2015 and 2017. See Compl. at 2. To satisfy this
Court’s jurisdictional requirements, plaintiffs must have: (1) timely filed a refund claim; and (2)
fully paid his or her tax liability. See Tiernan, 113 Fed. Cl. at 531; Shore, 9 F.3d at 1527.
Additionally, plaintiffs must comply with the filing requirements of RCFC 9(m). “The
requirements of [RCFC 9(m)] embody the jurisdictional prerequisites for maintaining such a suit
in [the Court of Federal Claims.]” Simmons v. United States, 127 Fed. Cl. 153, 160 (2016).
Plaintiffs who fail to comply with RCFC 9(m) are subject to dismissal, and “[t]his Court has
consistently dismissed similar suits where a plaintiff failed to provide any of the information or
documents required by [RCFC] 9(m).” Charles Adair v. United States, No. 19-1122, 2020 WL
1486861, at *4 (Fed. Cl. Mar. 26, 2020); see also Leber v. United States, 146 Fed. Cl. 9, 12
(2019) (dismissing the plaintiff’s claim for failure to comply with RCFC 9(m)).
For tax years 2015 and 2017, IRS records show plaintiffs compliance with the full
payment rule. Yet plaintiffs fail to attach copies of a refund claim to satisfy this Court’s
jurisdictional requirements under RCFC 9(m). See Compl., Exs. A–D; Pl.’s Resp., Exs. A–E.
Without the proper supporting documentation, plaintiffs are unable to provide compliance with,
and proof of, a timely refund claim. Id. Therefore, this Court lacks jurisdiction over tax years
2015 and 2017.
iii. Tax Year 2018
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For tax year 2018, plaintiffs argue the “IRS credited Plaintiff’s withholdings, which was
unequivocal proof our withholdings were being taken unlawfully.” Compl. at 2. Additionally,
plaintiffs argue their “‘wages’ were erroneously reported as ‘income,’” which plaintiffs
attempted to rebut by submitting a corrected IRS form. Pl.’s Resp. at 5. Pursuant to I.R.C. §
6402(a), the IRS “may credit the amount of [an] overpayment, including any interest allowed
thereon, against any liability in respect of an internal revenue tax on the part of the person who
made the overpayment.” This “statute grants broad authority to the IRS to credit overpayments
to any tax liability, which may reasonably include interest and penalties.” Smith v. United States,
4 F. App’x 759, 761 (Fed. Cir. 2001) (unpublished per curium decision). For tax year 2018, IRS
records show plaintiffs fully paid their tax liability and an overpayment was credited to pay
outstanding liabilities in tax years 2013 and 2014. Def.’s Mot., Ex. G at 43. To the extent
plaintiffs’ complaint can be construed as a tax refund claim, this Court lacks jurisdiction as
I.R.C. § 6402(a) grants the IRS authority to credit overpayments against any outstanding tax
liabilities. See Smith, 4 F. App’x at 761 (discussing I.R.C. § 6402 and the IRS’s ability to credit
the amount of an overpayment). Therefore, this Court lacks jurisdiction over tax year 2018.
3. Plaintiffs’ Fraud and Criminal Claims
Plaintiffs further argue I.R.C. § 7433 “plainly and clearly authorizes a civil action against
the United States where employees of the [IRS] recklessly or intentionally disregard any
provision of Title 26 . . . [a]s the IRS will not return our property.” Pl.’s Resp. at 1.
Additionally, plaintiffs argue pursuant to I.R.C. § 6020, they received “no subscribed [substitute
for return] documents for tax years involved,” and these unsubscribed documents “can only be
fraudulent computer data falsely entered as claimed SFR data, entered by statutorily
unauthorized . . . [IRS] employees, that has wrongfully been used . . . as evidence against the
plaintiff[s].” Id. at 4–5 (emphasis omitted).
Under the Federal Tort Claims Act, jurisdiction over tort claims against the United States
lies exclusively in federal district courts. 28 U.S.C. § 1346(b)(1) (“[T]he district courts . . . shall
have exclusive jurisdiction of civil actions on claims against the United States, for money
damages . . . for injury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of
his office or employment . . . .”); see also 28 U.S.C. § 1491(a)(1) (“The United States Court of
Federal Claims 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.”) (emphasis added). In this
regard, remedies in the Court of Federal Claims are significantly different than a federal district
court. See Ledford, 297 F.3d at 1382. “Where the adjudication of a type of claim has been
granted to the district courts exclusively, [the Court of Federal Claims] has no jurisdiction to hear
the case and must dismiss the matter.” Ross v. United States, 122 Fed. Cl. 343, 348 (2015).
Therefore, to the extent plaintiffs’ relief is based on alleged tortious conduct, the Court of
Federal Claims lacks jurisdiction.
Lastly, plaintiffs allege criminal violations under I.R.C. § 7214, seeming to allege
revenue officers and agents conducted “reckless and malicious actions” in the performance of
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their duties by not physically signing tax documents sent to plaintiffs or signing fraudulent
documents sent to plaintiffs. See Pl.’s Resp. at 2. As with tort claims, the Court of Federal
Claims is not a district court and lacks jurisdiction over criminal acts. See Hufford v. United
States, 87 Fed. Cl. 696, 700 (2009) (“[The Court of Federal Claims] lacks jurisdiction to
adjudicate criminal claims.”). Therefore, to the extent plaintiffs allege criminal acts, this Court
lacks jurisdiction.
V. Conclusion
The Court has considered all of plaintiffs’ arguments. To the extent not discussed
specifically herein, plaintiffs’ other claims are unpersuasive, meritless, or unnecessary for
resolving the issues currently before the Court. The Court of Federal Claims lacks subject-
matter jurisdiction to consider plaintiffs’ claims for the tax years 2013–2018. The Court hereby:
(1) GRANTS plaintiff Joseph B. Whiteford’s motion to proceed in forma pauperis; (2)
GRANTS plaintiff Gwenn C. Whiteford’s motion to proceed in forma pauperis; (3) GRANTS
the government’s motion to dismiss; and (4) DISMISSES the complaint.
IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
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