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Timothy B. Donnelly v. United States of America

May 15, 2012

TIMOTHY B. DONNELLY, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff brings this pro se civil action under section 7422(a) of the Internal Revenue Code, 26 U.S.C. § 7422, for a tax refund for the 2008 tax year. Defendant moves (Dkt. No. 13) to dismiss the action for lack of subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Plaintiff opposes the motion. He has also filed a letter motion (Dkt. No. 17) entitled "Plaintiff's Objection and Motion to Strike and Correct the Court Record."As explained below, the Court denies plaintiff's motion (Dkt. No. 17), grants defendant's motion (Dkt. No. 13), and dismisses the action for lack of subject-matter jurisdiction.

BACKGROUND

Plaintiff's W-2 form for the 2008 tax year shows that he received $81,511.07 in wages and $87,503.20 in Social Security and Medicare wages. It shows withholdings of $7,496.54 in federal income tax, $5,425.20 in Social Security tax, and $1,268.80 in Medicare tax. In this action, plaintiff seeks a refund of the entire $7,496.54 federal income tax withheld.

Defendant argues that the Court lacks subject-matter jurisdiction over this action, because plaintiff failed to file a valid claim for a refund for the 2008 tax year as required by section 7422(a) of the Internal Revenue Code, 26 U.S.C. § 7422(a). Section 7422(a) provides:

No suit ... shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, ... until a claim for refund ... has been duly filed with the Secretary [of the Treasury], according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

A "duly filed" claim for a refund under section 7422(a) is a jurisdictional prerequisite to a federal action for a refund. See Kirsh v. United States, 258 F.3d 131, 132 (2d Cir. 2001); United States v. Forma, 42 F.3d 759, 763 (2d Cir. 1994). An "informal" refund claim may satisfy section 7422(a), provided that it alerts the Internal Revenue Service ("IRS") that the taxpayer claims a refund and indicates the grounds upon which the claim is based. See Forma, 42 F.3d at 767, n.13.

Plaintiff contends that the following document, entitled "Taxpayer's Income Tax Return 2008," constitutes his refund claim for 2008. This document, signed under penalty of perjury, states:

In 2008, taxpayer studied the Internal Revenue Code, to locate relevant code authorities, which could be used to properly determine its income tax liability. During the investigation, a listing of Code citations that appeared relevant in scope was developed and tabulated. Those citations were examined and those whose text appeared to give positive application received further investigation, such as being cross-referenced to relevant authorities. Neither the citations nor the cross-references, when applicable, were helpful in reaching a solid basis of understanding. In some instances, the text of the Code citation appeared to describe positive actions of a methodology the taxpayer could apply, but to use the method required assumptions that could be taken to be so broad as to leave wide open any interpretation of its meaning and therefore of any conclusion. In September 28, 2008, we used the IRS Procedure 1 Letter Ruling process to ascertain the answers to the two fundamental questions: "What is the proper form for filing a return?", and, "What tax code citation authorizes the same?" Respectively, on October 16, 2008 the IRS Associate Chief Counsel's Office informed us that it was the position of the Service that they would be declining to rule on our Request and were sealing the file. We also submitted a request to the same end to the

Secretary of the Treasury and received no response. We also requested the same from the respective Senators and Congressman for the venue seeking their response and none of those officials provided a response.

The following table lists gross income, prepaid taxes, taxes due, and refund requested.

Gross income: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $87,503.20 ____________________________________________________________ Prepaid taxes: income tax . . . . . . . . . . . . . . . . . . . .$7,496.54 FICA distribution . . . . . . . . . . . . . . .$5,425.20 ____________________________________________________________ Total prepaid taxes: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12,921.74 ____________________________________________________________ Taxes due: income tax: $0,000.00 FICA distribution: $5,425.00 ____________________________________________________________ Total taxes due: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,425.20 ____________________________________________________________ Subtract Total taxes due from ...


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