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Goodwin v. United States Government

United States District Court, D. Colorado

March 30, 2018




         This matter is before the Court on Defendant United States Government's Motion to Dismiss (Doc. # 15) pursuant to Federal Rules of Civil Procedure 4(c), 4(i), 12(b)(5), 12(b)(1), and 12(b)(6). Defendant specifically requests dismissal of Plaintiff Donna Lynn Goodwin's Complaint, wherein she claims entitlement to a refund from the Internal Revenue Service (IRS) in the amount of $208, 995.00 for alleged wrongfully withheld private earnings in 2013, 2014, 2015, and 2016. Plaintiff did not respond to the Motion, and for the following reasons, the Court grants it and dismiss this case.

         I. Service of Process

         Rule 4(c)(2) provides that only nonparties may serve a summons and complaint. Even when service is effected by use of the mail, only a nonparty can place the summons and complaint in the mail. Constien v. United States, 628 F.3d 1207, 1213 (10th Cir. 2010). Moreover, a party seeking to serve the United States, its agencies, and employees must comply with Rule 4(i), which requires the party to “deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought” or send a copy of these documents “by registered or certified mail to the civil-process clerk at the United States attorney's office.” If service of process is insufficient, a defendant may move for dismissal under Rule 12(b)(5).

         Based on the certified mailing receipt filed in this case, it appears that Plaintiff, herself, placed the Summons and Complaint in the mail. (Doc. # 6.) Plaintiff has accordingly failed to comply with Rule 4(c)(2). It further appears that Plaintiff sent copies of the summons and Complaint to the United States Attorney General in Washington, D.C. but she did not serve the United States Attorney for the District of Colorado. Plaintiff has, therefore, also failed to comply with Rule 4(i). For these reasons, dismissal for insufficient service of process under Rule 12(b)(5) is warranted.

         II. Subject Matter Jurisdiction

         A. LAW

         Dismissal pursuant to Rule 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over claims for relief asserted in the complaint. “The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co.24, 518 F.3d 1186, 1189 (10th Cir. 2008). Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)); see Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). The instant motion launches a factual attack on this Court's subject matter jurisdiction.

         In order to bring a lawsuit against the United States, a party must identify an express waiver of sovereign immunity and statutory authority granting subject matter jurisdiction. See U.S. v. Mitchell, 445 U.S. 535, 538 (1980); U.S. v. Sherwood, 312 U.S. 584, 586 (1941); Smith v. Krieger, 389 Fed.Appx. 789, 795 (10th Cir. July 27, 2010) (unpublished). Waivers of sovereign immunity must be express and cannot be implied. See Mitchell, 455 U.S. at 538; Smith, 389 Fed.Appx. at 795.

         More specifically, a taxpayer bringing an action against the United States bears the burden of establishing an unequivocal waiver of sovereign immunity. Fostvedt v. U.S., 978 F.2d 1201, 1203 (10th Cir. 1992). Even if a lawsuit, like this one, is brought pursuant to a statute in which the United States expressly waives its sovereign immunity, the suit must strictly comply with the terms of the statute or else it is subject to dismissal. Sherwood, 312 U.S. at 590.

         As pertinent here, 26 U.S.C. § 7422(a) of the Internal Revenue Code provides:

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 ... until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.

         The regulations promulgated under § 7422(a) state, “The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.” Treas.Reg. § 301.6402-2(b)(1). If the refund claim does not meet the requirements of the Code and the regulations, the suit must be dismissed, L.E. Myers Co. v. United States, 673 F.2d 1366, 1367, 230 Ct.Cl. 142 (1982), because filing pursuant to the rules is a jurisdictional prerequisite, Martinez v. United States, 595 F.2d 1147, 1148 (9th Cir. 1979). In other words, “[t]o qualify as a refund claim, the tax return must not only be properly executed, but it also must at a minimum ‘identify . . . ‘the essential requirements' of each and every refund demand.'” Thompson v. United States, 1999 WL 302453, *2 (N.D.Ga. 1999) (Story, J.) (citing In re Ryan, 64 F.3d 1516, 1521 (11th Cir. 1995)); Ruble v. U.S. Gov't, Dep't of Treasury, I.R.S., 159 F.Supp.2d 1381, 1383 (N.D.Ga. 2001).

         B. ...

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