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McGuigan v. Internal Revenue Service

September 25, 2009


The opinion of the court was delivered by: Seybert District Judge



Pending before the Court is the Internal Revenue Service's ("IRS") motion to dismiss Michael W. McGuigan's ("Plaintiff" or "McGuigan") Complaint pursuant to Rules 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons stated below, the Court GRANTS Defendant's motion to dismiss.


McGuigan finds himself in his unenviable position through the admitted fault of another. Plaintiff filed his 2001 individual federal tax return on April 15, 2002. (Def.'s Ex. 1, 1.) The final payment relating to his 2001 tax liability occurred on April 15, 2003. (Id. at 2.) Almost four years later, in either January or February 2007, Plaintiff received a letter from the United States Railroad Retirement Board (the "Board") stating that it had erred in determining which part of his pension was taxable, and which part should have been treated as Social Security. (Compl. ¶ iii.) The Board went on to advise Plaintiff to amend his tax returns for the taxable years 2001 through 2005. (Id.) Plaintiff filed a Form 1040X to amend his 2001 individual tax return on July 10, 2007. (Def.'s Ex. 1, 1.) The IRS disallowed his claim, denying the refund request for his 2001 taxes as untimely. (Compl. Ex. 1, 1.) Plaintiff then appealed that denial to the IRS Appeals section. (Id.) After the Appeals section similarly denied Plaintiff's claim, he filed a civil action against the "Internal Revenue Service"*fn1 in this Court.


I. Standard of Review

A. Rule 12(b)(1)

When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions. See Robinson v. Gov't of Malay., 269 F.3d 133, 140 n.6 (2d Cir. 2001). Under Rule 12(b)(1), the Court will deem true the factual allegations contained in the complaint. See Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). When there is a question involving federal jurisdiction, such jurisdiction must be shown affirmatively. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925)). Accordingly, the Court will not draw inferences favorable to the party asserting jurisdiction. See id.

II. Plaintiff's Complaint must be Dismissed

A. Sovereign Immunity

The United States enjoys sovereign immunity from citizen's suits. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed. 2d 114 (1976) ("It long has been established, of course, that the United States, as sovereign, 'is immune from suit save as it consents to be sued . . . .'" (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The Federal Government can, however, waive that immunity by consenting to be sued. Testan, 424 U.S. at 399. But any such waiver must be unequivocal. United States v. Idaho ex rel. Dep't of Water Res., 508 U.S. 1, 7, 113 S.Ct. 1893, 123 L.Ed. 2d 563 (1993) ("There is no doubt that waivers of federal sovereign immunity must be 'unequivocally expressed' in the statutory text."); Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed. 2d 255 (1992) ("[A]ny waiver of the National Government's sovereign immunity must be unequivocal . . . ." (citing United States v. Mitchell, 445 U.S. 535, 538-39, 100 S.Ct. 1349, 63 L.Ed. 2d 607 (1980)). The terms of consent, then, define the limits on the Court's jurisdiction to consider Plaintiff's suit, see Testan, 424 U.S. at 399 ("the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.") (citing Sherwood, 312 U.S. at 586), and those limits on the scope of the waiver must be strictly construed in favor of the Untied States. McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951) ("statutes which waive immunity of the United States from suit are to be construed strictly in favor of the sovereign." (citations omitted)). Courts will not enlarge the reach of those statutes "beyond what the language requires." E. Transp. Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 71 L.Ed. 472 (1927). Moreover, where a statute is open to more than one "plausible" interpretation, it will not be held to have the "'unequivocal expression' of elimination of sovereign immunity" that the Supreme Court "insists" upon. United States v. Nordic Vill. Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 117 L.Ed. 2d 181 (1992).

The United States has consented to be sued regarding overpayments of taxes, but that consent is limited. See 28 U.S.C. § 1346(a)(1) (authorizing the suit against the United States for recovery of internal revenue tax); I.R.C. §§ 7422, 6511 (outlining the prerequisites to suing in district court for a tax refund); see, e.g., Costa v. I.R.S., No. 97-CV-2688, 1999 WL 691899, at *3 (E.D.N.Y. 1999) ("the Government is ordinarily immune from ...

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