The opinion of the court was delivered by: KOELTL
JOHN G. KOELTL, District Judge:
These two suits are brought on behalf of the individual plaintiffs--Susan Lehman, Rita Sager, and Gerald Sager--who seek to represent a class of those similarly situated. Plaintiffs seek to recover the amount of the federal excise tax that was allegedly improperly charged on their tickets procured from the defendants in the 1995 calendar year for travel in the 1996 calendar year. Defendants, USAIR Group, Inc., and USAIR, Inc. ("USAIR") have moved to dismiss the class action complaint pursuant to Fed. R. Civ. P. 12(b)(6). Defendant, Continental Airlines, Inc. ("Continental"), having already answered, has moved for a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Because the plaintiffs' claims in the two cases present similar issues, this Court is deciding the two motions in one consolidated opinion.
Plaintiffs were among those who bought tickets in the 1995 calendar year for airline travel in the 1996 calendar year. Prior to January 1, 1996, a ten per cent excise tax was assessed on the price charged for airline transportation, and the airline was required to collect the tax from each individual passenger.
Defendants were required to collect the tax for all taxable transportation which occurred prior to January 1, 1996. Defendants, in anticipation of a renewal of the excise tax past its expiration date of December 31, 1995, collected the tax for airline tickets sold during 1995 for travel in 1996. Once the statute authorizing the tax expired on December 31, 1995, the defendants ceased to include the excise tax in the amount they charged for airline tickets. Plaintiffs argue that the ten per cent amount of each ticket price collected by the defendants for travel in 1996 was not a tax, and in the alternative, if the amounts collected were a proper tax, plaintiffs are entitled to a refund from the defendant. Plaintiffs rely on 26 U.S.C. § 6415(c) and claim that they are entitled to sue the airlines who collected the excise tax. Further, plaintiffs contend that the defendants have violated New York State law prohibiting conversion and unjust enrichment. Defendants allege that they could not legally retain the excess monies under 26 U.S.C. § 4261 and thus all funds were properly remitted to the United States Government. Defendants argue that these suits must be dismissed because the only legal remedy that the plaintiffs may pursue is a suit against the Government in accordance with 26 U.S.C. § 7422(f), and that the state law claims are pre-empted pursuant to both 49 U.S.C. § 41713(b)(1) (1995) (formerly the Airline Deregulation Act of 1978, 49 U.S.C. § 1305(a)(1)) and 26 U.S.C. § 7422(f).
On a motion to dismiss, the factual allegations of the complaint are to be accepted as true and all reasonable inferences are construed in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994). A court should dismiss a complaint under Fed. R. Civ. P. 12(b)(6) only "if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
When reviewing a Rule 12(c) motion for judgment on the pleadings, this Court "must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party." Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994); Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989); see also National Association of Pharmaceutical Manufacturers, Inc. v. Ayerst Laboratories, 850 F.2d 904, 909 n.2 (2d Cir. 1988) (indicating that the Court treats a motion for judgment on the pleadings as if it were a motion to dismiss).
The same relief asserted in this case for a refund of the excise tax collected in 1995 for airline flights in 1996 has been considered and rejected by two other District Courts. See Sigmon v. Southwest Airlines, Civil No. 3:96-CV-393-H (N.D. Tx. May 23, 1996) (incorporating the reasons stated on the record--transcript pgs. 28-31--during a hearing held on May 23, 1996 by District Court Judge Barefoot Sanders); Kaucky v. Southwest Airlines, 1996 U.S. Dist. LEXIS 6750, No. 96 C 750, 1996 WL 267875, (N.D. Ill. May 17, 1996). In Sigmon, Judge Sanders expressly relied on Judge Weinfeld's thorough opinion in DuPont Glore Forgan Incorporated v. American Telephone and Telegraph Company, 428 F. Supp. 1297 (S.D.N.Y. 1977), aff'd, 578 F.2d 1366 (2d Cir.), cert. denied, 439 U.S. 970, 58 L. Ed. 2d 431, 99 S. Ct. 465 (1978), which rejected a private cause of action under 26 U.S.C. § 6415(c), the same statute relied on by the plaintiffs in this case. This Court agrees with these well reasoned opinions. Therefore, the plaintiffs' claims must be dismissed.
The first issue is whether the plaintiffs are entitled to a return of the amounts collected by the defendants pursuant to 26 U.S.C. § 6415(c).
The essence of this claim is that the plaintiffs are entitled to a refund from the tax collectors, the defendants, of the excise tax collected on each of their airline tickets.
A tax refund claim, such as the claim here, is governed by 26 U.S.C. 7422(a) which 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 or collected... until a claim for refund or ...