The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Jason Bartley commenced this action, pro se, against Defendant United States of America under § 6330 of the Internal Revenue Code seeking judicial review of administrative determinations concerning the collection of federal income taxes. Presently before this Court is Defendant's Motion to Dismiss Plaintiff's second cause of action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.*fn1 (Docket #15). Having considered the parties' written submissions and the applicable law, this Court will grant Defendant's motion.
The Internal Revenue Service ("IRS") assessed unpaid federal income tax liabilities and a $500 frivolous return penalty*fn2 against Plaintiff for tax years 1999 through 2001. See Complaint, Exhibit A. On November 29, 2004, the IRS mailed Plaintiff a document entitled "Final Notice of Intent to Levy and Notice of Your Right to a Hearing" with respect to these liabilities. See Complaint, Exhibit A. The IRS subsequently received Plaintiff's timely request for a collection due process ("CDP") hearing.
After the CDP hearing procedure was completed, the IRS Appeals Office issued two Notices of Determination Concerning Collection Action on January 10, 2006. The first determination concerned the collection of Plaintiff's federal income tax liabilities for the tax years 1999 through 2001. The Appeals Office determined that the proposed levy action with respect to these liabilities was appropriate. See Complaint, Exhibit E. The second determination concerned collection of the frivolous return penalty assessed against Plaintiff. The Appeals Office determined that the penalty was also appropriate. See Complaint, Exhibit E.
Plaintiff filed his Complaint in the United States District Court for the Western District of New York on February 7, 2006. Therein, he asserts two causes of action. First, Plaintiff challenges the imposition of the $500 frivolous return penalty. Second, he challenges the administrative determination with respect to his income tax liability for the years 1999 through 2001. Defendant filed a Motion to Dismiss Plaintiff's second cause of action for lack of subject matter jurisdiction on October 10, 2006. After full briefing, this Court took the motion under advisement without oral argument.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). It is the plaintiff's burden to establish proper jurisdiction by a preponderance of evidence. Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).
Plaintiff argues that this Court has pendent jurisdiction over his appeal of the determination concerning the collection of income tax liabilities. The common law doctrine of pendent jurisdiction, now referred to as supplemental jurisdiction, is codified at 28 U.S.C. § 1367(a). See Wilkerson v. United States, 67 F.3d 112, 119 n. 13 (5th Cir. 1995). Plaintiff erroneously contends that since this Court has original jurisdiction over his challenge to the $500 frivolous return penalty, it therefore must also have the authority to review his income tax liability for the years 1999 through 2001.
The United States, as sovereign, is immune from suit unless it consents to be sued. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). While it is true that § 1367 authorizes courts to hear "all other claims that are so related . . . that they form part of the same case or controversy," it does not operate as a waiver of the United States' sovereign immunity. 28 U.S.C. § 1367; see United States v. Certain Land Situated in City of Detroit, 361 F.3d 305, 307 (6th Cir. 2004); Wilkerson, 67 F.3d at 119 n.13. Waivers of the United States' sovereign immunity must be unequivocally expressed and must be strictly construed in favor of the United States. See United States v. Nordic Village, 503 U.S. 30, ...