Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2005

Robertson v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1893




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Robertson v. USA" (2005). 2005 Decisions. Paper 533.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/533


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      NO. 04-1893
                                   ________________

                             MARY LYNNE ROBERTSON;
                              L. THORNE MCCARTY,

                                                  Appellants

                                             v.

                          UNITED STATES OF AMERICA
                     _______________________________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 01-cv-04942)
                      District Judge: Honorable Stanley R. Chesler
                     _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 26, 2004

               BEFORE: ROTH, RENDELL and FISHER, Circuit Judges

                                (Filed September 19, 2005)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       In June 1997, appellant L. Thorne McCarty and appellant Mary Lynne Robertson

were married in the Republic of Fiji. Appellants subsequently filed a joint tax return for
the 1997 tax year. In August 1999, McCarty sent a letter with an affidavit and declaration

to the Fijian Registrar General’s Office. In the affidavit and declaration, McCarty stated

that his and Robertson’s marriage was null and void because the parties failed to

understand the tax consequences of their marriage. On the same date, L. Thorne McCarty

filed an amended federal income tax return for 1997. In the amended tax return, McCarty

sought to change his and Robertson’s filing status from “Married filing joint return,” to

“single” and “Head of household” respectively. The change in filing status resulted in tax

liability that was $4,635.00 less than the tax paid by appellants in 1997. McCarty thus

sought a $4,635.00 refund.1

       In September 1999, the Registrar General of Fiji responded to McCarty’s letter and

explained that McCarty’s marriage to Robertson was legal under Fiji law. In October

1999, the Internal Revenue Service (“IRS”) disallowed McCarty’s refund request. The

reason given by the IRS for the disallowance was that McCarty could not change his

filing status from joint to separate, head of household, or single after the due date of the

return. By letter dated March 6, 2000, the IRS further explained that McCarty’s refund

claim was denied because he did not prove that he was not legally married when he filed a

joint tax return for 1997. McCarty was not satisfied with the IRS’s explanations for the

denial of his refund claim.




       1
           It appears that only McCarty filed a refund claim for the 1997 tax year.

                                                2
       In October 2007, McCarty and Robertson filed a complaint in the United States

District Court for the District of New Jersey challenging the denial of the refund claim

and the IRS’s handling of the claim. The gravamen of the complaint was that the IRS

violated section 3505 of the Internal Revenue Service Restructuring and Reform Act of

1998, codified as section 6402(k) of the Internal Revenue Code (I.R.C. § 6402(k)).

Section 6402(k) requires the IRS to explain to a taxpayer why a refund claim is denied.

The appellants claimed that the IRS violated I.R.C. § 6402(k) by failing to give a valid

reason for denying McCarty’s refund claim and that the violation: (1) rendered the

disallowance of McCarty’s refund claim null and void (Count I); (2) entitled them to a

monetary award in the amount of the refund claimed (Count II); and (3) entitled them to

damages under I.R.C. § 7433 for unauthorized collection activities (Count III). The

appellants also claimed that the “marriage tax penalty” was unconstitutional (Count IV).

       In May 2002, the IRS filed a motion to dismiss Count III. The District Court

granted the motion to dismiss for failure to state a claim upon which relief can be granted.

The appeal from that order was dismissed without judicial action. See C.A. No. 03-1100.

In June 2003, the IRS filed a motion for summary judgment with respect to the remaining

claims. McCarty and Robertson subsequently filed a motion for summary judgment with

regard to Count IV. By order entered January 29, 2004, the District Court granted

summary judgment in favor of the IRS, and denied McCarty and Robertson’s cross-




                                             3
motion for summary judgment. McCarty and Robertson appeal only the dismissal of

Count II and Count III.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of

orders granting motions to dismiss and motions for summary judgment. Weston v.

Pennsylvania, 

, 425 (3d Cir. 2001) (motion to dismiss); Gallo v. City of

Philadelphia, 

, 221 (3d Cir. 1998) (summary judgment). In reviewing an

order granting a motion to dismiss, we accept all factual allegations in the complaint as

true, and we draw all reasonable inferences in the light most favorable to the plaintiff.

. We will affirm only if no relief could be granted under any set

of facts the plaintiff could prove. 

of summary judgment will be affirmed if

our review reveals that "there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). We

review the facts in a light most favorable to the party against whom summary judgment

was entered. See Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 

,

146 (3d Cir. 1993).

       After careful review of the record and consideration of the arguments on appeal,

we agree with the District Court’s disposition of Count II and Count III. The District

Court correctly dismissed Count II for lack of jurisdiction because the Government has

not waived its sovereign immunity to allow for damage suits for alleged violations of

I.R.C. § 6402(k). See United States v. Dalm, 

, 608 (1990); United States v.



                                              4
Testan, 

, 399 (1976). In any event, even if the United States had expressly

waived its sovereign immunity, and it did not, we note that Count II would nonetheless

fail on the merits because the IRS complied with I.R.C. § 6402(k) by providing McCarty

with an explanation as to why his refund claim was denied. The fact that McCarty and

Robertson are not satisfied with the explanation does not give rise to an issue of material

fact. Summary judgment was thus properly granted in favor of the IRS with respect to

Count II.

       The District Court correctly dismissed Count III for failure to state a claim under

I.R.C. § 7433. Because the IRS was not engaged in the collection of federal taxes in the

action challenged here, section 7433 did not apply. See Gonsalves v. IRS, 

,

16 (1 st Cir. 1992); Shaw v. United States, 

, 184 (5 th Cir. 1994).

       We have fully considered appellants’ arguments on appeal and conclude that they

lack merit and warrant no further discussion. For the reasons set forth above, we will

affirm the judgment of the District Court.




                                              5