Opinion
No. 4:03-CV-1788 CEJ.
April 16, 2004
MEMORANDUM AND ORDER
This matter is before the Court on defendant's motion to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Federal Rules of Civil Procure 12(b)(1) and 12(b)(6). Plaintiff has not responded to the motion, and the time allowed for doing so has expired.
Plaintiff brings this action pro se against the United States government. In the complaint, plaintiff alleges that she "filed a claim for a refund with the State of Missouri," and that "the defendant denied the plaintiff a deduction that is mandatory."
I. Legal Standard
Dismissal under Rule 12(b)(1) is appropriate if the issue before the court is whether the plaintiff has failed to satisfy a threshold jurisdictional requirement. See Trimble v. Asarco, Inc., 232 F.3d 946, 955 n. 9 (8th Cir. 2000). In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments. See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a facial attack, the court restricts itself to the face of the pleadings, and all of the factual allegations concerning jurisdiction are presumed to be true. Id. However, in a factual challenge, the court considers matters outside the pleadings, and no presumptive truthfulness attaches to the plaintiff's allegations. See Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). Furthermore, the existence of disputed material facts does not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. at 729. "Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. The plaintiff has the burden of proving that jurisdiction does in fact exist. Id. II. Discussion
A taxpayer suing the United States for a refund of federal taxes under 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422 must first meet certain requirements. First, the taxpayer must pay the tax in full before filing suit. Flora v. United States, 357 U.S. 63 (1958). Second, the taxpayer must file an administrative claim for a refund with the Internal Revenue Service. 26 U.S.C. § 7422(a). Third, the taxpayer must wait six months or until the IRS denies the claim, whichever is earlier, before filing a refund action in district court. 26 U.S.C. § 6532(a)(1). Fulfillment of these requirements is essential to establish the district court's subject matter jurisdiction.
Plaintiff has attached to her complaint copies of her federal income tax returns for the years 1999, 2000, and 2001. Each return bears the date November 14, 2003. If plaintiff filed the returns on that date, then the earliest date on which she may file suit, absent a decision by the IRS, is in May, 2004. According to the declaration of defendant's attorney, as of December 31, 2003, the IRS has no record of receiving either an income tax return or an administrative claim for refund from plaintiff relating to the years 1999, 2000 and 2001. Therefore, plaintiff has not (1) paid her taxes in full; (2) filed an administrative claim; or (3) waited six months before filing an action. Plaintiff has not met the requirements necessary to establish the Court's subject matter jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that the defendant's motion to dismiss [Doc.# 2] is granted.
A separate order of dismissal will be entered this same date.