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 credit has been duly filed with the Secretary....