or right to relief by evidence satisfactory to the Court." The
Court finds that Plaintiff will not be prejudiced by a finding
that the default in this action should be vacated, as there is a
preference that cases be decided on the merits. Moreover, this
case has remained stagnant for years without either party taking
For the reasons set forth above, the entry of default in this
action is hereby VACATED.
DEFENDANT'S MOTIONS TO DISMISS
Defendant has moved to dismiss the present action for the
following reasons: (1) the United States has not consented to
suit in the manner contemplated by the Plaintiff; (2) the Court
lacks jurisdiction with respect to the 1987 income tax year due
to the statute of limitations; (3) the Court lacks jurisdiction
over Plaintiffs suit for refund with respect to years 1973,
1976, 1980, 1987, 1992, 1993 and 1994 because Plaintiff did not
wait the requisite six month period pursuant to 26 U.S.C. § 6532
prior to commencing suit; (4) the Court lacks jurisdiction over
Plaintiffs complaint as it relates to the 1980, 1990 and 1993
tax years because she has not fully paid the disputed assessed
liabilities; (5) Plaintiffs demand for injunctive relief is
barred by the Anti Injunction Act; (6) Plaintiff has failed to
state a cause of action upon which relief may be granted as to
years 1987 and 1992 because she paid no tax for either of those
years; (7) Plaintiffs suit as it relates to the year 1980 is
statutorily barred pursuant to § 6512 because she previously
filed a petition with the United States Tax Court for that year;
(8) Plaintiff is barred from proceeding on her demand for pain
and suffering pursuant to § 7433 because she did not allege and
cannot establish that she exhausted her administrative remedies;
and (9) to the extent Plaintiff seeks tort damages, other than
under § 7433, she is likewise barred under the Federal Tort
Claims Act because she did not first file an administrative
claim for such damages.
It is unclear, after a thorough review of Defendant's moving
papers, pursuant to which Federal Rule of Civil Procedure
Defendant makes each of its motions. The difference is
significant because the Court may only consider the complaint
and documents attached thereto or incorporated by reference when
deciding a motion to dismiss pursuant to Rule 12(b)(6). However,
when deciding a motion brought pursuant to Rule 12(b)(1), the
Court can consider facts outside the pleadings. See Ghartey v.
St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). It
seems that Defendant deems his statute of limitations arguments
jurisdictional and, accordingly, has moved to dismiss pursuant
to 12(b)(1) and that only number six above was brought pursuant
to 12(b)(6). The Court recognizes and shall adhere to the Rule
that a plaintiff proceeding pro se is entitled to have her
complaint "held to less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,
520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam).
Generally, "[w]here the dates in a complaint show that an
action is barred by a statute of limitations," it is appropriate
for a defendant to move to dismiss pursuant to Fed.R.Civ.P.
12(b)(6). See Ghartey, 869 F.2d at 162; Mr. & Mrs. D. v.
Southington Bd. of Educ., 119 F. Supp.2d 105, 107 (Conn. 2000);
see also Joslin v. Grossman, 107 F. Supp.2d 150, 153 (Conn.
The Court will address each of Defendant's points in turn and
state pursuant to which Rule such motion is being decided.
1. Rule 12(b)(6) Standard
A district court should grant a motion to dismiss under
Fed.R.Civ.P. 12(b)(6) for
failure to state a claim only if "it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." H.J. Inc. v. Northwestern
Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106
L.Ed.2d 195 (1989) (quoting Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)); Annis
v. County of Westchester, 36 F.3d 251, 253 (2d Cir. 1994).
In applying this standard, a district court must "read the
facts alleged in the complaint in the light most favorable" to
the plaintiff and accept the factual allegations as true. H.J.
Inc., 492 U.S. at 249, 109 S.Ct. at 2906; Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974),
overruled on other grounds by Harlow v. Fitzgerald,
457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Christ Gatzonis
Elec. Contractor, Inc. v. New York City Sch. Constr. Auth.,
23 F.3d 636, 639 (2d Cir. 1994); see also Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 165, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (citing
Fed.R.Civ.P. 8(a)(2) to demonstrate liberal system of `notice
pleading' employed by the Federal Rules of Civil Procedure).
The Court's duty "is merely to assess the legal feasibility of
the [amended] complaint, not to assay the weight of the evidence
which might be offered in support thereof." Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). Accord Goldman
v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The appropriate
inquiry, therefore, is not "whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence
to support the claims." Scheuer, 416 U.S. at 236, 94 S.Ct. at
1686; Ricciuti v. New York City Transit Auth., 941 F.2d 119,
123-24 (2d Cir. 1991) (noting that plaintiff is not compelled to
prove his or her case at the pleading stage).
Additionally, a claimant is not required to set out in detail
the facts upon which he or she bases a claim. Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).
A claimant need only give a statement of his or her claim that
will give defendant "fair notice of what the . . . claim is and
the grounds upon which it rests." Id. Therefore, where a
complaint is filed that charges each element necessary to
recover, dismissal of the case for failure to set out evidential
facts can seldom be warranted. United States v. Employing
Plasterers Ass'n of Chicago, 347 U.S. 186, 189, 74 S.Ct. 452,
454, 98 L.Ed. 618 (1954). Individual allegations, however, that
are so baldly conclusory that they fail to give notice of the
basic events and circumstances of which the plaintiff complains
are meaningless as a practical matter and, as a matter of law,
insufficient to state a claim. See Barr v. Abrams,
810 F.2d 358, 363 (2d Cir. 1987). Additionally, on a motion to dismiss, a
complaint shall be deemed "to include any written instrument
attached to it as an exhibit or any statements or documents
incorporated in it by reference . . . and documents that the
plaintiff either possessed or knew about and upon which [they]
relied in bringing the suit. . . ." Rothman v. Gregor,
220 F.3d 81, 88-89 (2d Cir. 2000) (citations omitted).
2. Rule 12(b)(1) Standard
A defendant may move to dismiss pursuant to Rule 12(b)(1) in
two separate ways. He can either attack the complaint on its
face, arguing that the Plaintiff has failed to allege facts
supporting subject matter jurisdiction or he can argue that
factually, jurisdiction is lacking. See Tasini v. New York
Times Co., Inc., 184 F. Supp.2d 350, 353 (S.D.N.Y. 2002) (citing
Sniado v. Bank Austria AG, 00 CIV 9123, 2001 WL 812236, at *1
(SD.N.Y, Jul. 18, 2001)), see also Greater New York Hosp.
United States, 98 CIV 2741, 1999 WL 1021561, at *4 (S.D.N.Y.
Nov. 9, 1999).
The material that is reviewable by a court differs depending
upon the type of attack being made. On a motion to dismiss
brought pursuant to Fed.R.Civ.P. 12(b)(1) based on a facial
defect in the complaint, the court should review the complaint,
deeming all averments as true, for sufficiency. However, if
Defendant has made a factual challenge to the Plaintiffs
allegations in the complaint to the effect that jurisdiction is
lacking, "the Court may consider affidavits and other material
beyond the pleadings to resolve the jurisdictional question."
Araujo v. John Hancock Life Ins. Co., 206 F. Supp.2d 377
(E.D.N.Y. 2002) (citing Robinson v. Gov't of Malaysia,
269 F.3d 133, 141 n. 6 (2d Cir. 2001)). Further, truth of the
allegations in the complaint is not presumed "rather, the burden
is on the plaintiff to satisfy the Court, as fact-finder, of the
jurisdictional facts." Tasini, 184 F. Supp.2d at 353-54
(quoting Guadagno v. Wallack Ader Levithan Assoc., 932 F. Supp. 94,
95 (S.D.N.Y. 1996), aff'd, 125 F.3d 844, 1997 WL 609007 (2d
Cir. 1997) (citations omitted)). It is within the above
framework that the Court will review the Defendant's motions to
1. Defendant's argument that the United States has not
consented to suit in the manner contemplated by the
Although unclear from Defendant's moving papers, the Court
discerns Defendant's argument with respect to sovereign immunity
to be that Plaintiff has not cited the proper authority for her
basis of jurisdiction in federal court or that she has failed to
meet all of the requirements to commence suit. Plaintiff cites
various Internal Revenue Code sections as authority for
jurisdiction as well as 28 U.S.C. § 1331 as a basis for federal
question jurisdiction. Initially, subject matter jurisdiction
over the commencement of this action is validly found in
28 U.S.C. § 1346, which provides:
(a) The district courts shall have original jurisdiction,
concurrent with the United States Claims Court, of:
(1) Any civil action against the United States for the
recovery of any internal revenue tax alleged to have been
erroneously or illegally assessed or collected, or any penalty
claimed to have been collected without authority or any sum
alleged to have been excessive or in any manner wrongfully
collected under the internal revenue laws . . .
"Thus, sovereign immunity is waived for suits for the refund
of taxes erroneously or illegally assessed or collected."
Triangle Corp. v. United States, 592 F. Supp. 1316, 1317 (Conn.
1984) (internal quotation marks omitted). Accordingly, Plaintiff
has sufficiently alleged jurisdiction to withstand an initial
facial challenge to the Complaint. The Court recognizes that
there are other factors that impact jurisdiction, which are
2. Defendant argues that the Court lacks jurisdiction with
respect to the 1987 income tax year due to the statute of
While statute of limitations defenses have often, in this
circuit, been reviewed pursuant to Fed.R.Civ.P. 12(b)(6) as an
element of a claim, statutes of limitation are jurisdictional in
tax cases. See United States v. Dalm,