In the United States Court of Federal Claims
                                            No. 19-52T
                                     (Filed: August 30, 2019)

*************************************
MARY WOLFFING,                      *
                                    *                 Pro Se Plaintiff; RCFC 12(b)(1); RCFC
                  Plaintiff,        *                 12(b)(6); Tax Refund Suits; Claims
                                    *                 Against Individuals; Fraud; Due Process;
      v.                            *                 Illegal Collection; Tax Court Jurisdiction;
                                    *                 Flora Full Payment Rule;
THE UNITED STATES,                  *                 I.R.C. §§ 6020(b), 6511(b)(2)(A), 6402(a),
                                    *                 6513(b)(1), 6532(a), 7422(a)
                  Defendant.        *
*************************************

Mary Wolffing, Williston, VT, pro se.

Margaret E. Sheer, United States Department of Justice, Washington, DC, for defendant.

                                    OPINION AND ORDER

SWEENEY, Chief Judge

        In this case, pro se plaintiff Mary Wolffing alleges that Internal Revenue Service (“IRS”)
employees committed fraud by preparing substitutes for return on her behalf for several tax
years. Ms. Wolffing further alleges that IRS collection activities with respect to those returns
also constitutes fraud. According to Ms. Wolffing, the dismissal of her complaint in the United
States Tax Court (“Tax Court”) for lack of subject-matter jurisdiction demonstrates that the IRS
acted beyond its authority. She seeks redress for lost property, lost wages, and damage to her
credit history in connection with those collection efforts.

        Defendant moves to dismiss Ms. Wolffing’s complaint for lack of subject-matter
jurisdiction and for failure to state a claim upon which this court can grant relief. For the reasons
explained below, Ms. Wolffing’s fraud, due process, and illegal collection claims are beyond the
subject-matter jurisdiction of the United States Court of Federal Claims (“Court of Federal
Claims”). Further, her tax refund claims are not properly before the court. Accordingly, the
court grants defendant’s motion and dismisses the complaint.




                                                                              7018 0040 0001 1393 2386
                                        I. BACKGROUND

                              A. Statutory and Regulatory Context

         A United States citizen or resident with gross income above a certain amount in a taxable
year is generally subject to tax and must file a tax return for that year. I.R.C. § 6012(a)(1)
(1994). See generally Treas. Reg. § 1.6012-1 (1996). The due date for filing a tax return and
paying any tax owed for a calendar-year individual taxpayer is April 15 of the following year.
I.R.C. §§ 6072(a), 6151(a). Individuals may obtain an automatic six-month extension of the
filing due date by submitting an application on or before the due date.1 Treas. Reg.
§ 1.6081-4(a). If April 15 (or October 15, if filing under a valid extension) falls on a weekend or
holiday, the due date is the next business day thereafter. I.R.C. § 7503. Congress has directed
the IRS to prepare a substitute for return on behalf of an individual who fails to file a required
tax return. See 

Such an individual is also potentially subject to civil or criminal
penalties. See, e.g., 

6651(f), 7203. In addition to failure-to-file (i.e., late
filing) penalties, failure-to-pay (i.e., late payment) penalties and interest apply to any tax not paid
by the original due date. 

(interest on underpayment of tax), 6651(a)(2) (late
payment penalty).

        Whether resulting from a taxpayer-filed return or an IRS-prepared substitute for return,
the IRS has several tools at its disposal to collect unpaid taxes. There is an automatic statutory
lien on all real and personal property of a delinquent taxpayer in the amount of any taxes that
remain unpaid after the IRS issues a notice and demand for payment of such taxes. 

The IRS will often file a public notice of federal tax lien to place other potential interested
parties (such as prospective purchasers, mortgagees, or creditors) on notice of the lien. 

(f). After establishing the existence of a tax lien, the IRS may then levy upon the
delinquent taxpayer’s property (whether or not a public notice of such lien is filed) by seizing
and selling property or by garnishing wages. 

see also Treas. Reg.
§ 301.6331-1(a)(1) (“Levy may be made by serving a notice of levy on any person in possession
of, or obligated with respect to, property or rights to property subject to levy, including
receivables, bank accounts, evidences of debt, securities, and salaries, wages, commissions, or
other compensation.”). Besides garnishing wages, the IRS has the authority to direct employers
to increase the taxes withheld from employee paychecks.2 Treas. Reg. § 31.3402(f)(2)-1(g)(2).


       1
         An extension of time to file a tax return is not an extension of time to pay any tax due
with respect to that return. Treas. Reg. § 1.6081-4(c).
       2
           Specifically, the IRS “may notify the employer in writing that the employee is not
entitled to claim a complete exemption from withholding or more than the maximum number of
withholding exemptions specified by the IRS in the written notice” and “specify the applicable
marital status for purposes of calculating the required amount of withholding.” Treas. Reg.
§ 31.3402(f)(2)-1(g)(2)(i). The employer must then begin withholding tax in accordance with
the notice. 

                                                  -2-
                                       B. Factual History

        Ms. Wolffing timely filed her 1996 tax return and received a refund on or about May 9,
1997. Def.’s Mot. App. (“DA”) 120-21.4 Ms. Wolffing did not file another tax return until
     3

October 2017, when she filed her 2010 and 2013 through 2016 tax returns. See 

106,
109, 112, 115. As of January 4, 2019, the date on which she initiated the instant lawsuit, her
2017 tax return remained unfiled, 

122, and the due date for her 2018 tax return had not
yet passed.

        Because Ms. Wolffing stopped filing tax returns, the IRS, in June and July 2003,
prepared substitutes for her 1999, 2000, and 2001 returns. 

33, 40. In 2004, the IRS
prepared substitutes for Ms. Wolffing’s 1997, 1998, 2002, and 2003 returns. 

15, 47, 52.
In February 2008, the IRS prepared substitutes for Ms. Wolffing’s 2004, 2005, and 2006 returns.

61, 67. In 2010, the IRS prepared substitutes for Ms. Wolffing’s 2007 and 2008
returns. 

78. Finally, the IRS prepared substitutes for Ms. Wolffing’s 2009, 2011, and
2012 returns in 2011, 2013, and 2014, respectively. 

94, 102.

        All but one of those substitutes for return resulted in assessments of tax owed; the 2003
substitute for return (that was prepared in 2004) resulted in no tax due. In addition, the 2010,
2015, and 2016 returns that Ms. Wolffing filed herself each reflected a balance due. Her 2013
and 2014 returns, which she also filed herself, reflected overpayments of tax. However, because
she filed her 2013 tax return more than three years after the tax was deemed paid, she did not
receive that refund. 

see Boeri v. United States, 

, 1369 (Fed. Cir. 2013)
(relying on I.R.C. §§ 6511(b)(2)(A), 6513(b)(1)). Ms. Wolffing’s refund with respect to her
2014 return was credited towards the balance then outstanding for her 2005 tax year. DA 63,
109.

        The IRS assessed penalties and interest for the tax years in which Ms. Wolffing’s returns
reflected a balance due. The IRS also engaged in various collection efforts to pursue the
amounts that Ms. Wolffing owed.5 In addition to filing notices of federal tax lien and notices of
levy beginning in late December 2004, the IRS pursued various levies:


         3
          The facts in this section—which are undisputed for the purpose of resolving
defendant’s motion to dismiss—derive from the complaint, the parties’ submissions (including
attached exhibits), and matters of which the court may take judicial notice pursuant to Rule 201
of the Federal Rules of Evidence. See Rocky Mountain Helium, LLC v. United States, 

, 1325-26 (Fed. Cir. 2016).
         4
          Defendant filed three exhibits with its motion to dismiss. Because the exhibits are
paginated consecutively, rather than separately, the court refers to the exhibits as one appendix
for the sake of simplicity and ease of reference.
         5
       Ms. Wolffing was also subject to collection activity for outstanding state income taxes.
See Compl. Ex. C at 2-6.


                                                -3-
                                       •     August 24, 2009—wage garnishments; at the time, Ms.
                                             Wolffing owed a total of $171,188.22 for 1997 through 2006.
                                             Compl. Ex. B at 1.

                                       •     February 2, 2013—wage garnishments; at the time, Ms.
                                             Wolffing owed a total of $58,398.54 for 2007 through 2009.
                                             Compl. Ex. C at 19.

                                       •     August 8, 2016—wage garnishments; at the time, Ms.
                                             Wolffing owed a total of $108,687.92 for 2004 through 2009.
                                             Compl. Ex. C at 13.

                                       •     July 27, 2017—wage garnishments; at the time, Ms. Wolffing
                                             owed a total of $133,284.23 for 2004 through 2011. Compl.
                                             Ex. D at 1.

                                       •     August 17, 2017—bank account levy; at the time, Ms.
                                             Wolffing owed a total of $133,591.31 for 2004 through 2011.
                                             Compl. Ex. G at 1. The levy resulted in an aggregate seizure of
                                             $11,994.92 from two bank accounts. 

The amounts that the IRS collected pursuant to these actions (rounded to the nearest whole
dollar) are as follows:6

                                                               IRS Collection Amounts
                                                                              Tax Year
                                           1997     1998     1999      2000     2001     2002     2003     2004     2005
                                2005                        $10,000
                                2006                         $6,716
                                2007
  Year in Which Collected




                                2008
                                2009       $7,169
                                2010       $5,664
                                2011
                                2012                        $25,799
                                2013       $1,321            $6,151    $2,123 $11,160
                                2014       $4,506    $279             $12,270                              $4,153
                                2015                                                                       $4,091
                                2016                                                                       $3,988
                                2017                                                                       $3,903   $8,092




                            6
         The amounts collected for 2005 do not include the $2,076 refund transferred from the
2014 tax year on November 6, 2017 (retroactive to April 15, 2015). See DA 63, 109.


                                                                         -4-
        Through these collection efforts, Ms. Wolffing fully paid her taxes owed for 1997, 1999,
2001, and 2004. Her remaining tax liabilities for 1998 ($6,553.72), 2000 ($22,651.87), and 2002
($5,916.46) were written off in 2014 as uncollectable since the ten-year statute of limitations on
collection after assessment had expired. DA 16, 36, 48; see also I.R.C. § 6502(a)(1). Ms.
Wolffing’s remaining tax liabilities for 2005 ($9,325.70) and 2006 ($17,188.25, after having
made no payments via collections or otherwise) were written off for the same reason on
November 19, 2018. DA 63, 69. Thus, Ms. Wolffing has no remaining tax liabilities for the
1996 through 2006 tax years. However, after having made no payments (via collections or
otherwise), she has outstanding tax liabilities for subsequent years as follows:

                                 Tax Year         Amount Owed
                                   2007               $15,692.60
                                   2008               $20,268.59
                                   2009               $26,589.39
                                   2010               $28,142.87
                                   2011               $23,721.50
                                   2012               $33,824.79
                                   2013                     $0.00
                                   2014                     $0.00
                                   2015                $9,481.32
                                   2016               $13,739.22
                                   2017            No return filed
                                   2018              Not yet due
                                  TOTAL                 $171,460.30

82, 88, 92, 100, 104, 107, 110, 113, 116, 118, 122. In 2016 and 2017, the IRS deemed
Ms. Wolffing to be in “hardship” status and abated certain penalties and interest; the balances
shown in the table above reflect the amounts owed after those adjustments. E.g., 

       In addition to the various levies, the IRS issued notices to Ms. Wolffing’s employer to
withhold taxes from her wages at the “single” rate with zero allowances effective November 28,
2016. E.g., Compl. Ex. D at 9. The increased withholding rates were still in place in November
and December 2018. Compl. Ex. K.

       Meanwhile, Ms. Wolffing applied for a cash-out refinance mortgage loan on her primary
residence with People’s Trust Company of St. Albans. Compl. Ex. E at 1-2. Her loan
application references an unspecified prior foreclosure.7 

see also Compl. ¶ 3(b) (alleging

       7
          Ms. Wolffing executed a thirty-year note and concomitant security instrument in the
amount of $265,000 on June 6, 2002, that was to be repaid at an initial interest rate of 9.13%,
adjustable every six months after the first two years. Compl. Ex. A, Wolffing v. Household Fin.
Corp. II, No. 1:12-cv-00280-jgm (D. Vt. filed Dec. 18, 2012). In the latter portion of 2012, she
filed multiple lawsuits and a bankruptcy petition seeking to halt the foreclosure of her primary
residence; each of those actions was dismissed.


                                                -5-
that “[a] house/property was lost” because of the “liens placed on [Ms. Wolffing’s] credit
report”). The trust company denied her application on June 27, 2014, due to the IRS collection
actions and a prior bankruptcy. Compl. Ex. E at 1. Ms. Wolffing pursued refinancing again the
following year, Compl. Ex. F, but the record does not reflect the results of that attempt.

        On December 6, 2017, Ms. Wolffing filed suit in the Tax Court to dispute the Notices of
Deficiency and Notices of Determination Concerning Collection Action for 1996 through 2017,
inclusive. DA 2. In her Tax Court petition, Ms. Wolffing alleged that she “never received” any
of those notices, and provided no further facts or argument. 

The Tax Court dismissed
Ms. Wolffing’s petition, with her acquiescence, in its entirety for lack of subject-matter
jurisdiction on July 30, 2018, for the following reasons:

               •   untimely with respect to 1997 through 2002, 2004 through
                   2006, 2009, and 2011;

               •   no Notice of Deficiency was issued with respect to 1996, 2003,
                   2007, 2008, 2010, and 2012 through 2017;

               •   no Notice of Determination Concerning Collection Action was
                   issued with respect to 1996 through 2017; and

               •   the IRS had “not made any other determination with respect to
                   tax years 1996 through 2017 that would confer jurisdiction on
                   the [Tax Court].”8

Compl. Ex. A.9

                                     C. Procedural History

        In her January 4, 2019 complaint filed in this court, Ms. Wolffing alleges that the
IRS-prepared substitutes for return were fraudulent since I.R.C. § 6020(b) does not provide
authority for the IRS to prepare substitutes for Form 1040, the form used by individual
taxpayers; the IRS collection actions themselves were fraudulent because they were based on
fraudulent acts, i.e., the substitutes for return; and the Tax Court’s dismissal for lack of
jurisdiction means that the IRS had no authority to engage in collection actions and thus violated
her right to due process. Compl. ¶¶ 1(c), 3(a). She outlines various damages that she has


       8
          “Other determinations” that could potentially give rise to Tax Court jurisdiction over
issues concerning an individual taxpayer include a Final Determination Not to Abate Interest, a
Determination of Worker Classification, and a Notice of Determination Concerning Request for
Relief from Joint and Several Liability. See DA 2 (copy of Tax Court petition).
       9
        Exhibit A to Ms. Wolffing’s complaint is a complete copy of Wolffing v. Comm’r, No.
25372-17, slip op. (T.C. July 30, 2018).


                                               -6-
allegedly suffered, see 

describes the liens and levies as “Counterfeit Securit[ies],”

4, and asks that the Court of Federal Claims order the IRS to compensate her for “the
total amount of the fraudulent, sham tax liens and levies,” 

        In lieu of answering Ms. Wolffing’s complaint, defendant moves to dismiss for lack of
subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of
Federal Claims (“RCFC”) and failure to state a claim upon which this court can grant relief
pursuant to RCFC 12(b)(6). Defendant contends that Ms. Wolffing has not filed an
administrative claim for refund for 1996 through 2012 or 2014 through 2017; to the extent that
she asserts a tax refund claim, Ms. Wolffing has not complied with the RCFC 9(m) pleading
requirements; Ms. Wolffing has not fully paid her tax liabilities for 2007 through 2012, 2015, or
2016; Ms. Wolffing’s claim for a 2013 refund is barred by the look-back provisions of I.R.C.
§ 6511(b); and Ms. Wolffing’s claims for fraud and unauthorized collection action can only be
heard in federal district court.

      Briefing on defendant’s motion to dismiss is now complete. Neither party requested oral
argument, and the court deems it unnecessary. Defendant’s motion is now ripe for adjudication.

                                    II. LEGAL STANDARDS

                                        A. Pro Se Plaintiffs

        Pro se pleadings are “held to less stringent standards than formal pleadings drafted by
lawyers” and are “to be liberally construed.” Erickson v. Pardus, 

, 94 (2007) (per
curiam) (quoting Estelle v. Gamble, 

, 106 (1976)). However, 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, 

, 253 (2007); accord
Henke v. United States, 

, 799 (Fed. Cir. 1995) (“The fact that [the plaintiff] acted
pro se in the drafting of [her] complaint may explain its ambiguities, but it does not excuse its
failures, if such there be.”). In other words, a pro se plaintiff is not excused from her burden of
proving, by a preponderance of evidence, that the court possesses jurisdiction. See McNutt v.
Gen. Motors Acceptance Corp., 

, 179 (1936); Banks v. United States, 

, 1277 (Fed. Cir. 2014) (citing Reynolds v. Army & Air Force Exch. Serv., 

,
748 (Fed. Cir. 1988)).

                                     B. Standards of Review

                                         1. RCFC 12(b)(1)

       With respect to a motion to dismiss for lack of subject-matter jurisdiction pursuant to
RCFC 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, that
the court possesses subject-matter jurisdiction. Trusted Integration, Inc. v. United States, 

, 1163 (Fed. Cir. 2011). In determining whether subject-matter jurisdiction exists, the
court “must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all
reasonable inferences in favor of the plaintiff.” 

court is not limited to the


                                                 -7-
pleadings in considering subject-matter jurisdiction. 

; Pucciariello v.
United States, 

, 400 (2014). If the court finds that it lacks subject-matter
jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

                                        2. RCFC 12(b)(6)

        A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC
12(b)(6) if it does not provide a basis for the court to grant relief. Lindsay v. United States, 

, 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
[her] to a legal remedy.”). To survive an RCFC 12(b)(6) motion to dismiss, a plaintiff must
include in her complaint “enough facts to state a claim to relief that is plausible on its face”
sufficient for the defendant to have “fair notice” of the claim and the “grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 

, 555, 570 (2007) (internal quotation marks
omitted). In other words, 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, 

, 678 (2009) (citing 

). In ruling on such a motion,
the court must “accept as true all of the factual allegations contained in the complaint” and any
attachments thereto. 

(citing 

); accord
RCFC 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the
pleading for all purposes.”); Rocky Mountain Helium, LLC v. United States, 

,
1325 (Fed. Cir. 2016) (applying RCFC 10(c) and emphasizing that “a court ‘must consider the
complaint in its entirety, . . . in particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice’” (quoting Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 

, 322 (2007))).

                                 C. Subject-Matter Jurisdiction

         Whether the court possesses jurisdiction to decide the merits of a case is a “threshold
matter.” Steel Co. v. Citizens for a Better Env’t, 

, 94-95 (1998). Subject-matter
jurisdiction cannot be waived or forfeited because it “involves a court’s power to hear a case.”
Arbaugh v. Y & H Corp., 

, 514 (2006) (quoting United States v. Cotton, 

, 630 (2002)). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall)
506, 514 (1868). Therefore, it is “an inflexible matter that must be considered before proceeding
to evaluate the merits of a case.” Matthews v. United States, 

, 278 (2006); accord
K-Con Bldg. Sys., Inc. v. United States, 

, 1004-05 (Fed. Cir. 2015).

        Either party, or the court sua sponte, may challenge the court’s subject-matter jurisdiction
at any time. 

; see also Jeun v. United States, 

, 209-10
(2016) (collecting cases). The court must examine all pertinent issues relevant to subject-matter
jurisdiction because “[c]ourts have an independent obligation to determine whether subject-
matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 

,
94 (2010); accord Gonzalez v. Thaler, 

, 141 (2012) (“When a requirement goes to


                                                -8-
subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have
disclaimed or have not presented.”).

                                       D. The Tucker Act

        The ability of the Court of Federal Claims to entertain suits against the United States is
limited. “The United States, as sovereign, is immune from suit save as it consents to be sued.”
United States v. Sherwood, 

, 586 (1941). The waiver of immunity “may not be
inferred, but must be unequivocally expressed.” United States v. White Mountain Apache Tribe,

, 472 (2003). The Tucker Act, the principal statute governing the jurisdiction of
this court, waives sovereign immunity for claims against the United States, not sounding in tort,
that are founded upon the United States Constitution, a federal statute or regulation, or an
express or implied contract with the United States. 28 U.S.C. § 1491(a)(1) (2012); White

. However, the Tucker Act is merely a jurisdictional statute and “does
not create any substantive right enforceable against the United States for money damages.”
United States v. Testan, 

, 298 (1976). Instead, the substantive right must appear in
another source of law, such as a “money-mandating constitutional provision, statute or regulation
that has been violated, or an express or implied contract with the United States.” Loveladies
Harbor, Inc. v. United States, 

, 1554 (Fed. Cir. 1994) (en banc).

                                       E. Tax Refund Suits

        Congress has granted the Court of Federal Claims the authority to entertain tax refund
suits. 28 U.S.C. § 1346(a)(1); United States v. Clintwood Elkhorn Mining Co., 

, 4
(2008). To bring a tax refund suit in this court, a plaintiff must:

               •   make full payment of its tax liabilities, Flora v. United States,
                   

, 177 (1960); Diversified Grp. Inc. v. United
                   States, 

, 981 (Fed. Cir. 2016);

               •   file a timely claim for refund with the IRS, I.R.C. § 7422(a);
                   and

               •   file a timely complaint after the refund claim is denied or
                   deemed denied, I.R.C. § 6532(a).




                                                 -9-
Further, plaintiffs filing a tax refund suit in this court must include the following with the
complaint:


                (1) a copy of the claim for refund, and

                (2) a statement identifying:

                      (A) the tax year(s) for which a refund is sought;

                      (B) the amount, date, and place of each payment to be
                          refunded;

                      (C) the date and place the return was filed, if any;

                      (D) the name, address, and identification number (under
                          seal) of the taxpayer(s) appearing on the return;

                      (E) the date and place the claim for refund was filed; and

                      (F) the identification number (under seal) of each plaintiff, if
                          different from the identification number of the taxpayer.

RCFC 9(m).

                                           III. ANALYSIS

        In her complaint, Ms. Wolffing alleges that the IRS and its employees engaged in fraud
and violated her right to due process, the IRS collection actions are illegal, and the IRS owes her
refunds of amounts collected. In response to defendant’s motion to dismiss, Ms. Wolffing
describes the federal taxation system as “immoral” and emphasizes that she has “conscientiously
objected for many years” to participation therein. Pl.’s Resp. 5. The Court of Federal Claims
lacks subject-matter jurisdiction to entertain most of Ms. Wolffing’s claims. To the extent that
the court has such jurisdiction, Ms. Wolffing fails to state a claim upon which this court can
grant relief.

    A. The United States Is the Only Proper Defendant in the Court of Federal Claims

        Ms. Wolffing alleges that “contractors/agents for the United States” have engaged in
fraudulent and illegal activities; she specifically names two IRS revenue officers who issued
levies on her wages and four IRS attorneys referenced in her Tax Court case. Compl. ¶¶ 1(a),
1(c), 3(a); Compl. Ex. A1 at 6; Compl. Ex. B at 1; Compl. Ex. D at 1. “Qualified immunity
shields federal and state officials from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 

, 735
(2011). When a government official commits an illegal act, that act cannot be attributed to the

                                                  -10-
government because government officials have no authority to violate the law. Therefore, by
alleging illegal conduct by certain government officials, Ms. Wolffing necessarily sues those
actors in their individual capacities, not their official capacities.

        However, in the Court of Federal Claims, “the only proper defendant . . . is the United
States, not its officers, nor any other individual.” Stephenson v. United States, 

,
190 (2003); accord RCFC 10(a). Because “the United States itself” is the only proper defendant
in the Court of Federal Claims, this court lacks jurisdiction over claims alleged against
“individual federal officials,” Brown v. United States, 

, 624 (Fed. Cir. 1997), as
well as “states, localities, state and local government entities, or state and local government
officials and employees,” Anderson v. United States, 

, 331 (2014). Similarly,
the Court of Federal Claims lacks jurisdiction “over suits against private parties.” Edelmann v.
United States, 

, 380 (2007). In other words, “if the relief sought [in the Court of
Federal Claims] is against other than the United States, the suit as to them must be ignored as
beyond the jurisdiction of the court.” 

.

        Accordingly, to the extent that Ms. Wolffing complains of improper conduct by parties
other than the United States federal government, this court lacks jurisdiction over those claims,
and they must be dismissed.

  B. The Court of Federal Claims Lacks Jurisdiction Over Ms. Wolffing’s Fraud Claim

      To the extent that Ms. Wolffing seeks relief in this court based on alleged tortious
conduct, the Court of Federal Claims lacks jurisdiction. 28 U.S.C. § 1491(a)(1); Rick’s
Mushroom Serv., Inc. v. United States, 

, 1343 (Fed. Cir. 2008).

         Claims of fraud sound in tort.10 See, e.g., Lawrence Battelle, Inc. v. United States, 

, 585 (2014). Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1),
2671-2680, jurisdiction over tort claims against the United States lies exclusively in federal
district courts. U.S. Marine, Inc. v. United States, 

, 1365-66 (Fed. Cir. 2013). The
Court of Federal Claims is not a federal district court. Ledford v. United States, 

,
1382 (Fed. Cir. 2002); see also Lightfoot v. Cendant Mortg. Corp., 

, 563 (2017)
(distinguishing between the “Court of Federal Claims” and “federal district courts”). Therefore,
“[w]here 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.”11
Ross v. United States, 

, 348 (2015).

       10
           To the extent that the fraud alleged by Ms. Wolffing can be construed as a criminal
act, the Court of Federal Claims similarly lacks jurisdiction. See Hufford v. United States, 

, 702 (2009) (collecting cases).
       11
           Ms. Wolffing argues that “actions taken by the United States in fraud are a
Constitutional violation under the Fifth Amendment” and therefore the Court of Federal Claims
may “order recoupment of all monies taken under the fraud as a constitutional violation subject
to this Court’s jurisdiction.” Pl.’s Resp. 12. “It is undisputed that the Takings Clause of the


                                               -11-
        In any event, Ms. Wolffing’s fraud claim fails on the merits. Ms. Wolffing maintains that
the IRS-prepared substitutes for return, and accordingly the collection efforts based on those
returns, constituted fraud because I.R.C. § 6020(b) does not give IRS officers the authority to
prepare substitutes for Form 1040 returns. She is mistaken. Congress has given the IRS the
authority to prepare substitutes for return for “any return required by any internal revenue law or
regulation” when the return is not filed. I.R.C. § 6020(b)(1) (emphases added). As relevant
here, the internal revenue regulations provide that individuals required to file tax returns
generally must do so on Form 1040.12 Treas. Reg. § 1.6012-1(a)(6). Further, those regulations
contain specific procedures for the IRS to prepare substitutes for return, and those procedures
include explicit references to income taxes for individuals. See 

Therefore,
contrary to Ms. Wolffing’s assertions, the authority to prepare substitutes for return pursuant to
I.R.C. § 6020(b) extends to Form 1040. Cf. Rader v. Comm’r, 

, 382-83 (2014)
(discussing the sufficiency of substitutes for return, in lieu of Form 1040, prepared by the IRS
pursuant to I.R.C. § 6020(b)).

         Ms. Wolffing also relies on the Tax Court’s dismissal of her 2017 lawsuit for lack of
jurisdiction to support her argument that the IRS lacked authority to prepare substitutes for return
and to pursue collection efforts. This argument reflects a fundamental misunderstanding of the
Tax Court’s July 30, 2018 dismissal order. In that order, the Tax Court considered whether there
were any grounds “that would confer jurisdiction on the [Tax Court]” to examine Ms. Wolffing’s
petition. Compl. Ex. A (emphasis added); see also DA 2-3 (petition). In other words, as
defendant observes, the Tax Court was only concerned with its own ability to entertain Ms.
Wolffing’s claims for relief—not whether the IRS had the requisite authority to pursue collection
efforts.


Fifth Amendment is a money-mandating source [of law] for purposes of Tucker Act jurisdiction”
in the Court of Federal Claims. Jan’s Helicopter Serv., Inc. v. FAA, 

, 1309 (Fed.
Cir. 2008). However, it is well understood that a court must “look to the true nature of the action
instead of merely relying on the plaintiff’s characterization of the case” in “determining the
existence and grounds for [its] jurisdiction.” Doe v. United States, 

, 1315 (Fed.
Cir. 2004). Here, Ms. Wolffing asserts a fraud claim, not a takings claim. In any event, to
prevail on a takings claim under the Tucker Act, a plaintiff must concede the legitimacy of the
government action that effected the taking. Hearts Bluff Game Ranch, Inc. v. United States, 

, 1332 (Fed. Cir. 2012). By asserting that her purported takings claim arises from
fraud, as well as “[u]nlawful seizure,” Pl.’s Resp. 26, Ms. Wolffing does not concede the
legitimacy of the alleged taking. Therefore, to the extent that Ms. Wolffing asserts a takings
claim, she cannot prevail, and the claim must be dismissed.
       12
           Some individuals qualify to file tax returns using Form 1040A, which is “an optional
short form” version of Form 1040. Treas. Reg. § 1.6012-1(a)(6). But see I.R.S. News Release
IR-2019-07 (Jan. 28, 2019) (describing a “redesigned” Form 1040 that “consolidates Forms
1040, 1040A, and 1040EZ into one form that all individual taxpayers will use to file their 2018
federal income tax return”). In addition, certain individuals required to file a tax return must do
so using Form 1040NR. Treas. Reg. § 1.6012-1(b)(1)(i).


                                                -12-
        In Wall v. United States, the plaintiff advanced the same argument that Ms. Wolffing
advances here, i.e., that the Tax Court’s dismissal for lack of jurisdiction meant that the IRS
lacked the authority to enforce its liens. 

, 589-90 (2019). Another judge of this
court soundly rejected that argument, and explained that the Tax Court’s dismissal order stood
for the proposition 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.” 

The Wall decision is directly on point. In the instant case, the Tax
Court’s dismissal of Ms. Wolffing’s petition similarly had no bearing on the IRS’s authority to
pursue collection of her unpaid taxes through substitutes for return, liens, levies, and increased
withholding. Accordingly, Ms. Wolffing’s characterization of the import of the July 30, 2018
Tax Court decision is unavailing.

         In sum, the Court of Federal Claims lacks subject-matter jurisdiction to consider Ms.
Wolffing’s fraud claims. To the extent that the court has such jurisdiction, Ms. Wolffing fails to
state a claim upon which this court can grant relief because the IRS has the authority to prepare
substitutes for return and issue liens, levies, and notices of increased withholding.

   C. The Court of Federal Claims Lacks Jurisdiction Over Ms. Wolffing’s Due Process
                                        Claim

        Ms. Wolffing also asserts that the IRS violated her procedural due process rights by the
manner in which it pursued collection of back taxes. However, it is “well settled” that the Due
Process Clause of the Fifth Amendment is not money-mandating. Smith v. United States, 

, 1116 (Fed. Cir. 2013) (citing LeBlanc v. United States, 

, 1028 (Fed. Cir.
1995)). As stated above, the Court of Federal Claims lacks jurisdiction over claims that are “not
tied to money-mandating sources of law.” Ivaldy v. United States, 655 F. App’x 813, 815 (Fed.
Cir. 2016) (unpublished per curiam decision). Therefore, Ms. Wolffing’s due process claim is
beyond the jurisdiction of this court. Accord 

.

D. The Court of Federal Claims Lacks Jurisdiction Over Ms. Wolffing’s Illegal Collection
                                       Claim

      In addition to asserting fraud and due process claims, Ms. Wolffing contends that the IRS
engaged in illegal collection actions.

        The Internal Revenue Code permits taxpayers to bring lawsuits when “any officer or
employee of the [IRS] recklessly or intentionally, or by reason of negligence, disregards any
provision of [the Internal Revenue Code], or any regulation promulgated [thereunder]” in
connection with federal tax collection. I.R.C. § 7433(a). However, such actions may only be
brought in federal district court. 

Court of Federal Claims is not a federal district
court, 

, Ms. Wolffing cannot maintain her illegal collection claim here.
Accord Russell v. United States, 

, 287 (2007). In any event, Ms. Wolffing has
not plausibly alleged that any IRS officials disregarded any law or regulation with respect to the
IRS’s collection efforts.



                                                -13-
        Ms. Wolffing also implicitly invokes I.R.C. § 7426 as a basis for this court’s subject-
matter jurisdiction. Under that section, a person whose property is wrongfully levied may bring
an action against the federal government to contest the levy. I.R.C. § 7426(a)(1). However, such
an action may only be brought in federal district court. 

Court of Federal
Claims lacks subject-matter jurisdiction to entertain a wrongful levy action. Further, wrongful
levy actions may only be maintained by persons “other than the person against whom is assessed
the tax out of which such levy arose,” 

wrongful levy is a levy in which the IRS
seizes property that does not belong to the taxpayer, Cherbanaeff v. United States, 

, 496 (2007). Here, Ms. Wolffing’s property was seized to offset her own tax liabilities.
Therefore, she lacks standing to bring a wrongful levy action, even in federal district court.
Taxpayers who seek to recover funds that were levied to satisfy their own tax liabilities, such as
Ms. Wolffing, must file a refund claim rather than a wrongful levy claim.

        Finally, the Anti-Injunction Act prevents, with exceptions not relevant here, taxpayers
from maintaining suits against the IRS “in any court” to enjoin tax assessment or collection
activity. I.R.C. § 7421(a) (emphasis added). In other words, the Act “generally bars pre-
enforcement challenges to certain tax statutes and regulations” and instead requires taxpayers to
“raise such challenges in refund suits after the tax has been paid.”13 Fla. 

. Thus, Ms. Wolffing cannot ask the Court of Federal Claims, or any other court, to enjoin
the IRS from assessing and collecting taxes.

         Accordingly, the Court of Federal Claims lacks jurisdiction to entertain Ms. Wolffing’s
illegal collection claim.

                  E. Ms. Wolffing’s Tax Refund Claims Must Be Dismissed

        In addition to her other claims, the court construes the allegations in Ms. Wolffing’s pro
se complaint as tax refund claims with respect to the 1996 through 2017 tax years. See Compl. ¶
1(b)-(c). However, none of these claims is properly before this court.

 1. Ms. Wolffing Has Not Fully Paid Her Tax Liabilities for 1998, 2000, 2002, 2006–2012,
                                    and 2015–2017

        The first requirement for the Court of Federal Claims to have subject-matter jurisdiction
over a tax refund claim is for the taxpayer to make full payment of her tax liabilities for the
year(s) at issue. However, a taxpayer need not pay the penalties and interest arising from the
principal balance of those liabilities unless she also “assert[s] a claim over assessed interest or
penalties on grounds not fully determined by the claim for recovery of principal.” Shore v.
United States, 

, 1527-28 (Fed. Cir. 1993). Thus, for example, a claim for abatement
of penalties and interest can be maintained without payment of the penalties and interest if the

       13
          Taxpayers can also raise such challenges in deficiency proceedings before the Tax
Court without prepayment, assuming that the requirements for asserting Tax Court jurisdiction
are met. Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury, 

, 1066 (D.C. Cir.
2015).


                                                -14-
theory for such abatement is that the underlying principal tax assessment, which was fully
prepaid prior to filing suit, was in error. However, if the claim for abatement of penalties focuses
on another reason (such as reasonable cause) rather than the underlying tax liability, then those
penalties must be prepaid.

        Ms. Wolffing does not advance any particular theory for return of the penalties and
interest that the IRS assessed against her. The court therefore construes her claim for refund of
penalties and interest to be based wholly on the underlying principal tax liabilities. Accordingly,
whether Ms. Wolffing has complied with the Flora full payment rule with respect to a particular
tax year is properly determined based on whether she has fully paid the principal tax assessment
for that year, regardless of whether she has fully paid the concomitant penalties and interest.

        Ms. Wolffing has fully paid her taxes for 1996, 1997, 1999, 2001, 2003, 2004, 2013, and
2014. She filed returns showing refunds due for 1996, 2013, and 2014. The IRS substitute for
return for 2003 reflects no refund or balance owed. Further, Ms. Wolffing fully paid her taxes
through levy payments for 1997, 1999, 2001, and 2004.

        Next, Ms. Wolffing’s tax records show zero balances owed for 1998, 2000, 2002, 2005,
and 2006, due to the IRS writing off the remaining balances. The principal tax assessment (i.e.,
exclusive of penalties and interest) and total payments (through withholding and subsequent
levies) for each of these years—before the IRS wrote off the remaining balance—are as follows:

                Year Principal       Withholding  Levies   Total Payments
                1998    $9,219            $5,886     $279           $6,165
                2000  $21,857               $992  $14,393          $15,385
                2002    $4,007              $306       $0             $306
                                                        14
                2005  $11,955             $3,748 $10,168           $13,916
                2006  $10,864             $3,214       $0           $3,214

Thus, with respect to the tax years shown in this table, Ms. Wolffing has only fully paid the
principal balance of her 2005 taxes.

        Further, Ms. Wolffing currently has outstanding tax liabilities for 2007 through 2012,
2015, and 2016. Her payments made through withholdings are less than the principal tax
assessment for each of these years (whether the returns were submitted by Ms. Wolffing or
prepared by the IRS), and she has made no further payments. Accordingly, she has not fully paid
her tax liabilities for 2007 through 2012, 2015, and 2016.




       14
           The $10,186 collected towards Ms. Wolffing’s 2005 tax liability reflects $8,092 seized
from her bank account and the $2,076 refund applied from her 2014 return, both of which took
place in 2017.


                                               -15-
        Finally, as of the date on which she filed her complaint in the instant case, Ms. Wolffing
had not filed her 2017 tax return. Therefore, she has failed to establish that she has fully paid her
tax liabilities for 2017.

        In sum, Ms. Wolffing has fully paid her tax liabilities for 1996, 1997, 1999, 2001, 2003
through 2005, 2013, and 2014. She has not fully paid her tax liabilities for 1998, 2000, 2002,
2006 through 2012, and 2015 through 2017. Accordingly, the court lacks jurisdiction to
entertain her tax refund claims for 1998, 2000, 2002, 2006 through 2012, and 2015 through
2017.

     2. Ms. Wolffing Did Not File Timely Refund Claims for 1997–2012 and 2015–2017

        The second requirement for the Court of Federal Claims to have subject-matter
jurisdiction over a tax refund claim is for the taxpayer to file a timely claim for refund with the
IRS. Ms. Wolffing does not allege, nor do IRS records demonstrate, that she has effected any
filings with the IRS of any sort other than her tax returns for 1996, 2010, and 2013 through 2016.

         A tax return—whether original or amended—can constitute an administrative claim for
refund if the return contains “sufficient data to allow calculation of tax.” Waltner v. United
States, 

, 1333 (Fed. Cir. 2012) (citing Treas. Reg. § 301.6402-3(a)(5)). In other
words, the return will suffice for a refund claim if it shows “an honest and genuine endeavor to
satisfy the law.” 

Paper Co. v. Helvering, 

, 180 (1934)). The
court assumes (without deciding) that the tax returns filed by Ms. Wolffing meet these
requirements. However, only the 1996, 2013, and 2014 returns constituted claims for refund
because they were the only returns on which Ms. Wolffing showed payments in excess of tax
liabilities. Indeed, her 2010, 2015, and 2016 returns showed balances due and thus cannot
constitute claims for refund.15

         To be timely, a plaintiff must file her refund claim “within 3 years from the time the
return was filed or 2 years from the tax the tax was paid, whichever of such periods expires the
later.”16 I.R.C. § 6511(a). When a refund claim is included on an original tax return, it will
always be timely because the refund claim is filed simultaneously with (i.e., less than three years
later than) the tax return. Accordingly, Ms. Wolffing filed timely refund claims for 1996, 2013,
and 2014.




       15
           The court need not opine on whether substitutes for return prepared by the IRS can
constitute claims for refund because none of the substitutes for return that the IRS prepared on
Ms. Wolffing’s behalf showed payments in excess of tax liabilities.
       16
          If “no return was filed by the taxpayer,” a refund claim is timely if it is filed “within 2
years from the time the tax was paid.” I.R.C. § 6511(a).



                                                -16-
       In sum, the court lacks jurisdiction to consider Ms. Wolffing’s tax refund claims for 1997
through 2012 and 2015 through 2017 because she has not filed a timely refund claim with the
IRS for those years.

            3. Ms. Wolffing Filed a Timely Complaint With Respect to 2013 and 2014

        The final requirement for the Court of Federal Claims to have subject-matter jurisdiction
over a tax refund claim is for the taxpayer to file a timely complaint after the refund claim is
denied or deemed denied. To be timely, a plaintiff must file her complaint within two years after
the IRS denies her refund claim.17 I.R.C. § 6532(a)(1). Because Ms. Wolffing only filed timely
refund claims concerning 1996, 2013, and 2014, the court need consider the timeliness of her
complaint as it pertains to those years only.

         With respect to the 1996 tax year, the IRS neither denied Ms. Wolffing’s claim (even in
part) nor failed to act on her claim. Indeed, the IRS granted Ms. Wolffing’s refund claim in full
on or about May 9, 1997, when it issued a refund. Ms. Wolffing therefore cannot demonstrate an
essential prerequisite for the exercise of this court’s jurisdiction: that the IRS denied her refund
claim. To the extent that the court has jurisdiction over her tax refund claim for 1996, Ms.
Wolffing has already received all of the relief to which she is entitled, and therefore she fails to
state a claim upon which this court can grant relief. See 

.

        With respect to the 2013 tax year, the IRS formally disallowed Ms. Wolffing’s refund
claim on June 11, 2018, when it determined that she had filed her tax return more than three
years after the date on which the tax was deemed paid and thus she was not entitled to a refund.
Ms. Wolffing initiated the instant lawsuit on January 4, 2019. Because she filed suit less than
two years after the IRS denied her timely refund claim, the court has jurisdiction to consider Ms.
Wolffing’s tax refund claim for 2013.

        With respect to the 2014 tax year, the IRS effectively disallowed her claim on November
6, 2017, when it transferred the full amount of her refund to her 2005 tax year (albeit with an
April 15, 2015 effective date to reflect when the tax was deemed paid). Ms. Wolffing initiated
the instant lawsuit on January 4, 2019. Because she filed suit less than two years after the IRS
denied her claim, the court has jurisdiction to consider Ms. Wolffing’s tax refund claim for 2014.

       In sum, the court lacks jurisdiction to consider Ms. Wolffing’s tax refund claim for 1996.
The court does, however, have jurisdiction to consider her refund claims for 2013 and 2014.




       17
            A refund claim is deemed denied if the IRS fails to act on the claim within six months
after the claim is filed. Treas. Reg. § 301.6532-1(a)(1). In that scenario, a plaintiff can file suit
at any time after the six-month period expires. 

Ms. Wolffing Is Not Entitled to Relief for 2013 and 2014

       Although the Court of Federal Claims has subject-matter jurisdiction to consider Ms.
Wolffing’s tax refund claims for 2013 and 2014, those claims fail on their merits.18 See 

taxpayer files a timely claim for refund, as Ms. Wolffing did for 2013 and 2014,
the amount of the refund is limited to “the portion of the tax paid within the period, immediately
preceding the filing of the claim, equal to 3 years plus the period of any extension of time for
filing the return.” I.R.C. § 6511(b)(2)(A). Payments made via withholding credits are deemed
paid on April 15 of the following year for calendar-year taxpayers. 

        Ms. Wolffing filed her 2013 tax return, which included her refund claim for that year, on
October 24, 2017. Due to the three-year look-back period described above, she was eligible to
receive a refund of taxes paid from October 24, 2014, through October 24, 2017. If she had
received the automatic six-month extension of time to file her 2013 return, she would have been
eligible to receive a refund of taxes paid within three years and six months preceding the filing of
her refund claim, i.e., from April 24, 2014, through October 24, 2017. Whether Ms. Wolffing
had received the automatic extension, however, is immaterial. The only payments she made
towards her 2013 tax liability were made through wage withholdings. Those amounts were
deemed paid on April 15, 2014. Accordingly, there were no tax payments eligible to be refunded
when Ms. Wolffing filed her refund claim. Even if she had received the extension, the maximum
refund she can receive with respect to 2013 is zero.

        Ms. Wolffing filed her 2014 tax return, which included her refund claim for that year, on
October 11, 2017. Due to the three-year look-back period described above, she was eligible to
receive a refund of taxes paid from October 11, 2014, through October 11, 2017 (or from April
11, 2014, through October 11, 2017, if she had received the automatic extension). As with 2013,
the only payments she made towards her 2014 tax liability were made through wage
withholdings. Those amounts were deemed paid on April 15, 2015. Accordingly, she was
eligible to receive the entire $2,076 refund as indicated on her refund claim. When the IRS
processed her return on November 6, 2017, however, it applied the full amount towards her 2005
tax liability instead of issuing a refund. See I.R.C. § 6402(a) (allowing the IRS to credit
overpayments against any outstanding tax liabilities of the same taxpayer); Smith v. United
States, 4 F. App’x 759, 761 (Fed. Cir. 2001) (unpublished per curiam decision) (explaining that
I.R.C. § 6402(a) “grants broad authority to the IRS to credit overpayments to any tax liability”).
Therefore, Ms. Wolffing is not entitled to further relief with respect to the 2014 tax year. Her
entitlement to those funds, if any, must be resolved through a refund claim with respect to 2005,
the tax year to which the overpayment was applied. (As stated above, however, the court lacks
jurisdiction to consider her refund claim for 2005 as currently asserted.)

       18
          The court assumes (without deciding) that Ms. Wolffing substantially complied with
the RCFC 9(m) pleading requirements for tax refund claims based on the information contained
in the complaint, the exhibits attached to the complaint, and defendant’s appendix, and because
defendant did not file an RCFC 12(e) motion for a more definite statement. See, e.g., Artuso v.
United States, 

, 337-39 (2008).


                                               -18-
       In sum, because Ms. Wolffing is not entitled to any further relief with respect to 2013 and
2014, she fails to state a claim upon which this court can grant relief for those years.

                                       IV. CONCLUSION

        The court has considered all of the parties’ arguments. To the extent not discussed
herein, they are unpersuasive, meritless, or unnecessary for resolving the issues currently before
the court.

       The Court of Federal Claims lacks subject-matter jurisdiction to consider Ms. Wolffing’s
claims against individuals as well as her fraud, due process, and illegal collection claims.19
Further, the court lacks subject-matter jurisdiction to consider Ms. Wolffing’s tax refund claims
for 1996 through 2012 and 2015 through 2017. With respect to Ms. Wolffing’s tax refund
claims for 2013 and 2014, she has failed to state a claim upon which this court can grant relief.

       Accordingly, the court GRANTS defendant’s motion and DISMISSES the complaint.
No costs. The clerk is directed to enter judgment accordingly.

       IT IS SO ORDERED.



                                                  MARGARET M. SWEENEY
                                                  Chief Judge




       19
            The dismissal of Ms. Wolffing’s prior Tax Court petition was not based on the
propriety (or lack thereof) of the IRS’s actions to assess and collect taxes. Her recourse, if any,
is to file any outstanding tax returns, satisfy her unpaid tax liabilities, and then file a refund
claim.


                                                -19-