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Suvak v. United States

United States District Court, Second Circuit

May 21, 2013

ROBERT M. SUVAK, Plaintiff,


JAMES C. FRANCIS, IV, Magistrate Judge.

In this action, plaintiff Robert Suvak claims he has been wrongfully denied income tax return refunds that were due to him for tax years 1998 through 2004. The government moves to dismiss his claims as to tax years 1998, 1999, and 2004 for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. The parties have consented to my jurisdiction for all purposes, in accordance with 28 U.S.C. § 636(c). For the following reasons, the government's motion is granted.


Mr. Suvak did not file his federal income tax returns for tax years 1998 through 2004 until 2010. (Complaint ("Compl."), § 5). He claims that he was unable to file the returns before that because he was "financially disabled"[1] due to bipolar disorder and Asperger's Disorder, a form of Autism. (Compl., §§ 6-7).

The plaintiff alleges that he overpaid his taxes and requested a refund from the Internal Revenue Service (the "IRS"). (Compl., § 8). The IRS denied the claims for refund because Mr. Suvak had filed his returns more than three years after the date that they were due. (Compl., § 9). He appealed on the ground that the three year statute of limitations did not apply because he was financially disabled. (Compl., § 10).

An IRS Appeals Officer denied the plaintiff's 1998 refund claim because the doctors who documented his medical conditions were not treating him when his 1998 tax return was due. (Compl., § 12). The Appeals Office denied the claims for tax years 2000 through 2003 because Mr. Suvak was employed and therefore did not qualify as financially disabled. (Compl., § 11). His claims for tax years 1999 and 2004 have not been reviewed by the IRS Appeals Office. (Compl., § 14).

The plaintiff claims he subsequently obtained letters that establish he was financially disabled since 1998, but the Appeals Office refused to review those letters. (Compl., § 13).

On August 6, 2012, the plaintiff brought this suit. After the government moved to dismiss, I set a briefing schedule, but Mr. Suvak never answered the motion.


A. Legal Standard

"[A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) [of the Federal Rules of Civil Procedure] if it lacks the statutory or constitutional power to adjudicate it.'" Shabaj v. Holder, ___ F.3d ___, ___, 2013 WL 1760540, at *2 (2d Cir. 2013) (first alteration in original) (quoting Aurecchione v. Schoolman Transportation System , 426 F.3d 635, 638 (2d Cir. 2005)); accord United States v. Blake, ___ F.Supp.2d ___, ___, 2013 WL 1728937, at *5 (E.D.N.Y. 2013). The standard for reviewing a motion to dismiss under Rule 12(b)(1) is the same as a motion brought under Rule 12(b)(6) "except that [a] plaintiff asserting subject matter jurisdiction has the burden of proving beyond a preponderance of the evidence that it exists.'" Blake, ___ F.Supp.2d at ___, 2013 SL 1728937, at *5 (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000)). Thus, the court "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Winters v. United States, No. 10 Civ. 7571, 2013 WL 1627950, at *3 (S.D.N.Y. April 16, 2013) (quoting Morrison v. National Australia Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008)). "In adjudicating a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the court may consider matters outside the pleadings." Blake, ___ F.Supp.2d at ___, 2013 WL 1728937, at *5. The court may take into account "affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Central Schools , 386 F.3d 107, 110 (2d Cir. 2004).

An unopposed motion to dismiss does not warrant automatic dismissal; rather, "the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law.'" Accurate Grading Quality Assurance, Inc. v. Thorpe, No. 12 Civ. 1343, 2013 WL 1234836, at *5 (S.D.N.Y. March 26, 2013) (quoting McCall v. Pataki , 232 F.3d 321, 322-23 (2d Cir. 2000)); see Jordan v. Forfeiture Support Associates, ___ F.Supp.2d ___, 2013 WL 828496, at *3 (E.D.N.Y. 2013) (deeming defendant's dismissal motions unopposed because plaintiff failed to respond to them despite multiple opportunities and addressing merits); Gray v. Metropolitan Detention Center, No. 09 CV 4520, 2011 WL 2847430, at *2 n.3 (E.D.N.Y. July 15, 2011) (noting that plaintiff's failure to respond to motion to dismiss under Rule 12(b)(1) does not automatically warrant dismissal of complaint and considering merits of motion).

B. Claims for Tax Years 1998, 1999, and 2004

The federal government cannot be sued absent a waiver of sovereign immunity. Federal Deposit Insurance Corp. v. Meyer , 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."); Kirsh v. United States , 131 F.Supp.2d 389, 391 (S.D.N.Y. 2000) ("It is well established that under the doctrine of sovereign immunity, no person may sue the federal government absent its consent to be sued."). "[A] waiver of sovereign immunity must be unequivocally expressed' in statutory text" and its scope is construed strictly in favor of immunity. Federal Aviation Administration v. Cooper, ___ F.Supp.2d ___, ___ , 132 S.Ct. 1441, 1448 (2012); see Exxon Mobile Corp. & Affiliated Cos. v. Commissioner of Internal Revenue , 689 F.3d 191, 201 (2d Cir. 2012). "The terms of [the United States'] consent to be sued in any court defines that court's jurisdiction to entertain ...

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