GRAY H. MILLER, Magistrate Judge.
Pending before the court
Plaintiff is an individual and trustee who brought suit against the United States on the ground that the Internal Revenue Service ("IRS") had not processed his claims for federal income tax refunds.
In a related matter, on November 14, 2014, the United States filed a petition to enforce an IRS administrative summons with this court.
On July 28, 2015, Plaintiff filed suit against the United States for credits in the amount of what he claimed to be "over-assessed" taxes, plus interest and penalties.
On October 2, 2015, the United States filed a motion to dismiss or to strike Plaintiff's complaint, arguing that the court lacked subject matter jurisdiction over any of Plaintiff's claims and that, in the alternative, his complaint relating to his claims brought in his capacity as a trustee should be struck because, as a non-lawyer, he may not represent a trust.
The court must decide a Federal Rule of Civil Procedure ("Rule") 12(b)(1) motion before addressing any attack on the merits.
Local Rule 7.3 provides that "[o]pposed motions will be submitted to the judge twenty-one days from filing without notice from the clerk and without appearance by counsel. S.D. Tex. R. 7.3 (2000). Local Rule 7.4 provides that "[f]ailure to respond will be taken as a representation of no opposition." S.D. Tex. R. 7.4 (2000).
The United States argues that Plaintiff's complaint should be dismissed because he has not sufficiently alleged jurisdiction. As noted supra, Plaintiff has not responded to the United States' motion to dismiss, and the motion is therefore unopposed. However, unopposed motions may not be automatically granted.
The United States argues that all but one of Plaintiff's alleged tax refund claims are based on unpaid taxes and that the court therefore lacks subject matter jurisdiction as to those claims. The court agrees.
The United States is immune from suit absent its consent.
26 U.S.C. § 7422(a)(emphasis added).
The Supreme Court, in
In this case, Plaintiff alleges that the United States has failed to accept his claims for tax refunds on behalf of himself and as a trustee. Plaintiff avers in his complaint that the court has jurisdiction pursuant to 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422. The United States has responded that Plaintiff owes over two million dollars for the tax periods in question and has produced authenticated tax records to support this averment. The court finds that it is undisputed that Plaintiff has not paid the disputed taxes and that the court lacks subject matter jurisdiction over all of Plaintiff's claims arising from these unpaid tax assessments.
The United States admits that one of Plaintiff's assessments has been fully paid: that related to the 2009 Stephens Associates Trust income tax return. However, the United States argues that the court lacks jurisdiction over this claim for refund because it was untimely made.
26 U.S.C. § 6511(a) requires that a taxpayer must make a claim for a refund within three years from the date the return was filed or two years from the time the tax was paid, whichever is later. A taxpayer's failure to file a refund claim within the above period deprives the district court of subject-matter jurisdiction.
The United States argues that the Stephens Associates 2009 amended tax return would not have reset the three-year period Plaintiff had to make a claim even if it had been accepted by the IRS as a legitimate return.
Here, Plaintiff admits he filed a claim for a refund in 2014, over a year beyond the deadline provided by the statute. Because his filing was untimely, the court lacks subject-matter jurisdiction over the Stephens Associates Trust's 2009 tax refund claim.
Based on the foregoing, the court
The Clerk shall send copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof to file written objections thereto pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.
The original of any written objections shall be filed with the United States District Clerk electronically. Copies of such objections shall be mailed to opposing parties and to the chambers of the undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.