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WEISMAN v. IRS

June 17, 1997

LARRY M. WEISMAN, Plaintiff, against INTERNAL REVENUE SERVICE, Defendant.


The opinion of the court was delivered by: LOWE

 MARY JOHNSON LOWE, U.S.D.J.

 Plaintiff Larry M. Weisman ("Plaintiff"), proceeding pro se, commenced this tax refund action against the Internal Revenue Service ("IRS"). *fn1" Currently before the Court is the motion of the United States ("Government"), pursuant to Federal Rule of Civil Procedure 12(c) ("Rule 12(c)"), to dismiss the action for lack of subject matter jurisdiction. No opposition papers were submitted. *fn2" For the reasons stated below, the Government's motion is granted.

 BACKGROUND

 This action arises from Plaintiff's claim for a refund of taxes withheld from his income in 1983. In his complaint, Plaintiff alleges that "on April 15, 1987, [he] filed [his] 1983 income tax return," which reported an overpayment of withholding taxes by $ 4,836.59. Compl. at 1. Sometime after May 19, 1987, the IRS denied Plaintiff's refund claim because: (1) Plaintiff is deemed to have paid his 1983 withholding taxes on April 15, 1984, and (2) the IRS "received [Plaintiff's] income tax return on April 20, 1987" and, therefore, could not refund "tax paid more than three years before the filing of the claim." Id. On May 19, 1989, Plaintiff commenced this tax refund action.

 DISCUSSION

 I. Legal Standard

 A. Motion to Dismiss

 In considering a Rule 12(b)(1) motion, courts may rely upon affidavits and other "evidence outside the pleadings" to resolve jurisdictional disputes. Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992); Moschetto v. United States, 1997 U.S. Dist. LEXIS 6510 at *1, 1997 WL 241806, at *1 (S.D.N.Y. 1997). The party bringing the action bears the burden of establishing the existence of federal court jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 86 L. Ed. 951, 62 S. Ct. 673 (1942). *fn3"

 II. Government's Motion to Dismiss

 The Government maintains that Plaintiff's claim is barred by the statutory limits on tax refund actions. The limitations "upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981). The absence of consent is a "jurisdictional limitation on suits against the United States." See, e.g., United States v. Forma, 42 F.3d 759, 763 (2d Cir. 1994).

 Section 1346(a)(1) of Title 28 of the United States Code empowers the court to hear actions for recovery of taxes "alleged to have been erroneously or illegally assessed or collected[.]" 28 U.S.C. § 1346(a)(1). This grant of consent to tax refund suits, however, is not plenary. This provision "must be read in conformity with other statutory provisions which qualify a taxpayer's right to bring a refund suit upon compliance with certain conditions." United States v. Dalm, 494 U.S. 596, 601, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (1990). One such provision, 26 U.S.C. § 7422(a), prevents a taxpayer alleging overpayment of taxes from bringing a lawsuit "until a claim for refund or credit has been duly filed with the Secretary [of the IRS], according to the provisions of law in that regard and the regulations of the Secretary established in pursuance thereof." See Magnone v. United States, 902 F.2d 192, 193 (2d Cir. 1990) ("a taxpayer must bring the claim for refund to the IRS as a prerequisite to jurisdiction"). The taxpayer bears the burden of showing that the refund claim was timely filed. Lefrak v. United States, 1996 U.S. Dist. LEXIS 10594 at *21, 1996 WL 420308, at *2 (S.D.N.Y. 1996).

 Section 6511 of the Internal Revenue Code establishes two jurisdictional requirements for the timely filing of refund claims in tax refund suits. See Commissioner of Internal Revenue v. Lundy, 133 L. Ed. 2d 611, 116 S. Ct. 647, 650-51 (1996) (deeming Sections 6511(a) and 6511(b)(2)(A) jurisdictional prerequisites to tax refund suits in federal district court). First, a refund claim must be filed within three years of the date the tax return is filed. 26 U.S.C. § 6511(a); see Dalm, 494 U.S. at 602. Second, a refund claim is improper if the tax was paid more than three years before the claim was filed. 26 U.S.C. § 6511(b)(2)(A); see also Zeier v. United States Internal Revenue Serv., 80 F.3d 1360, 1364 (9th Cir. 1996) ("Following the Supreme Court in Lundy, we hold that § 6511(b)(2)(A) is jurisdictional."); Porter v. United States, 919 F. Supp. 927, 932 (E.D. Va. 1996) (holding that Lundy made clear that Section 6511(b)(2)(A) establishes jurisdictional requirement for refund claims in district courts). ...


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