The opinion of the court was delivered by: Seybert, District Judge
Pending before the Court is Defendant's motion to dismiss or in the alternative for summary judgment. Plaintiff filed this action on May 12, 2005, claiming damages of $3,259 for a tax refund. For the reasons below, the Court GRANTS Defendant's motion to dismiss any portion of Plaintiff's claim exceeding $818.
The facts of this case are taken from Plaintiff's Complaint and opposition papers. For the purpose of this motion, the Court presumes these facts to be true. Plaintiff, Evgeni Kabotyanski ("Plaintiff"), currently resides at 20 Mark Street in Port Jefferson, New York. (Compl. ¶ 1.) Plaintiff sues the Internal Revenue Service, Department of Treasury ("Defendant" or "IRS"). (Id. at ¶ 2.)
On May 12, 2000, Plaintiff filed a 1040NR income tax return with the IRS for the year 1999. (Id. at ¶ 4.) The filing deadline for 1999 was April 17, 2000. (Id.) On April 17, 2003, Plaintiff filed an Amended 1040X Tax Return for the year 1999, amending his filing of May 12, 2000. (Id.) Plaintiff states that his Amended Tax Return was timely filed within the three-year statute of limitations period and is thus not time-barred. (Id.) Despite being timely, the IRS still did not accept Plaintiff's Amended Tax Return. (Id.) This suit followed, and Plaintiff claims damages in the amount of $3,259. (Id.)
When a court considers a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court must "accept as true all material factual allegations in the complaint." Puletti v. Patel, 05-CV-2293, 2006 U.S. Dist. LEXIS 51597, at *9-*10 (E.D.N.Y. July 14, 2006) (quoting Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992) (citations omitted)). The Court, however, may not draw any "argumentative inferences favorable to the party asserting jurisdiction." Id. (quoting Atlantic Mut. Ins. Co., 968 F.2d at 198). The Court can also "refer to evidence outside the pleadings." Id. at *10 (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
The party asserting jurisdiction must prove by a preponderance of the evidence that subject matter jurisdiction exists. Id. (quoting Makarova, 201 F.3d at 113). Pro se plaintiffs, although entitled to a more liberal pleading standard, must still comport with the procedural and substantive rules of law. See Jedrejcic v. Croatian Olympic Comm., 97-CV-3865, 1999 U.S. Dist. LEXIS 20946, at *18 (E.D.N.Y. Oct. 6, 1999).
Defendant moves to dismiss, claiming that the Court lacks subject matter jurisdiction over the suit for any refund beyond $818. Defendant claims that the Internal Revenue Code ("IRC") has a jurisdictional prerequisite for refund suits. Because Plaintiff has not established subject matter jurisdiction, the Court has no jurisdiction over Plaintiff's claims - except for $818.00 of his claims. Plaintiff contends that the only issue is whether his claim is time-barred.
Federal district courts can hear actions for recovery of taxes that were "erroneously or illegally assessed or collected." Kishnani v. IRS, 91-CV-3953, 1992 U.S. Dist. LEXIS 9851, at *3 (E.D.N.Y. June 24, 1992) (quoting 26 U.S.C. § 1346(a)(1)). A person alleging overpayment of taxes cannot bring a lawsuit unless a claim for refund or credit has been filed with the IRS. See id. (quoting 28 U.S.C. § 7422(a) (internal quotation marks omitted). A taxpayer's claim for a refund ...