United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD, District Judge.
Pfizer, Inc. brings this action against Defendant United
States of America to recover interest due with respect to
Plaintiffs taxable year ended December 31, 2008. Defendant
previously moved to dismiss the Complaint for lack of subject
matter jurisdiction. The Court denied that motion, holding
that 28 U.S.C. § 1346(a)(1) grants subject matter
jurisdiction over this action because Plaintiff seeks
“recovery of . . . [a] sum alleged to have been
excessive or in any manner wrongfully collected under the
internal-revenue laws.” Pfizer, Inc. v. United
States, No. 16 Civ. 1870, 2016 WL 6902196, at *2
(S.D.N.Y. Oct. 31, 2016) (quoting § 1346(a)(1)).
Defendant again moves to dismiss for lack of subject matter
jurisdiction, this time on the ground that the suit was filed
outside the time limits set forth in 26 U.S.C. §
6532(a)(1). For the following reasons, the motion is granted.
following facts are taken from the Complaint and documents
submitted on this motion. The facts are construed in the
light most favorable to Plaintiff. See McGowan v. United
States, 825 F.3d 118, 125 (2d Cir. 2016).
was the parent corporation of a group of affiliated U.S.
corporate taxpayers filing a consolidated federal income tax
return for the year ended December 31, 2008. That tax return
was due on March 15, 2009. On March 3, 2009, Plaintiff filed
a Form 7004 for its tax year ended December 31, 2008, and
extended the due date of its return until September 15, 2009.
On September 11, 2009, Plaintiff timely filed its 2008
federal income tax return, which showed an overpayment of tax
of $769, 665, 651. Plaintiff received an electronic return
acknowledgement showing the Internal Revenue Service (the
“IRS”) accepted Plaintiff's 2008 federal
income tax return on September 11, 2009. On the return,
Plaintiff requested that $500, 000, 000 of the overpayment be
refunded and the balance of $269, 665, 651 be applied to its
2009 estimated tax. The IRS processed the return, and six
refund checks, totaling $499, 528, 499, were scheduled to
issue on October 19, 2009.
never received the refund checks. Plaintiff made numerous
inquiries of the IRS about the status of the refund between
December 2009 and February 2010. In February 2010, the IRS
confirmed that the six checks had not been sent and canceled
them. Plaintiff's transcript of account with the IRS
states that the six refund checks were issued on October 19,
2009, and canceled the same day.
March 19, 2010, the IRS deposited the $499, 528, 499 tax
refund directly in Plaintiff's bank account via
electronic funds transfer. No interest was paid on the $499,
528, 499 tax refund. Plaintiff subsequently filed a claim for
refund on March 13, 2013, requesting allowable interest on
the $499, 528, 499 tax refund under 26 U.S.C. § 6611.
The IRS disallowed Plaintiff's claim for interest. The
notice of disallowance was sent by certified mail to
Plaintiff in Madison, New Jersey, and received there on May
10, 2013, according to a certified mail receipt that
Defendant submitted on this motion. In this action, Plaintiff
seeks interest in the amount of $8, 298, 048 for the period
from March 15, 2009, when Plaintiff's return was due,
until March 19, 2010, when Plaintiff received the tax refund.
deciding motions to dismiss under Rule 12(b)(1), a court
accepts as true all factual allegations in the complaint and
draws all reasonable inferences in favor of the plaintiff.
McGowan, 825 F.3d at 125. The plaintiff has the
burden of showing by a preponderance of the evidence that
subject matter jurisdiction exists. Id. “When
subject matter jurisdiction is challenged, we are free to
consider materials extrinsic to the complaint.”
Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002);
accord Devi v. Silva, 861 F.Supp.2d 135, 143-44
(S.D.N.Y. 2012) (citing Moser).
motion to dismiss is granted because Plaintiffs suit is time
barred under 26 U.S.C. § 6532(a)(1).
Court previously determined that 28 U.S.C. § 1346(a)(1)
grants subject matter jurisdiction over this action because
the tax overpayment interest that Plaintiff seeks is
encompassed by the statutory language “any sum alleged
to have been excessive or in any manner wrongfully collected
under the internal-revenue laws.” Pfizer, 2016
WL 6902196, at *2. Plaintiff urged that interpretation in
response to Defendant's first motion to dismiss, and that
interpretation is now law of the case. See Aramony v.
United Way of Am., 254 F.3d 403, 410 (2d Cir. 2001)
(“The doctrine of the law of the case posits that if a
court decides a rule of law, that decision should continue to
govern in subsequent stages of the same case”).
its spacious terms, § 1346(a)(1) must be read in
conformity with other statutory provisions which qualify a
taxpayer's right to bring a refund suit upon compliance
with certain conditions. The first is [26 U.S.C] §
7422(a) . . . .” United States v. Dalm, 494
U.S. 596, 601 (1990). Section 7422(a) requires a taxpayer
seeking to recover “any sum alleged to have been
excessive or in any manner wrongfully collected” to
file a claim for refund with the IRS before suit can be
brought. Additionally, 26 U.S.C. § 6532(a)(1) states,
“No suit or proceeding under section 7422(a) for the
recovery of any internal revenue tax, penalty, or other sum,
shall be begun . . . after the expiration of 2 years from the
date of mailing” by the IRS to the taxpayer a notice of
disallowance of claim. This statutory scheme allows a
taxpayer to bring a refund claim in federal district court
under § 1346(a)(1) “within two years after the IRS
disallows the taxpayer's administrative refund
claim.” EC Term of Years Trust v. United
States, 550 U.S. 429, 431 n.2 (2007) (citing 26 U.S.C.
§§ 6532(a)(1)-(2), 7422(a)).
Plaintiff filed a pre-suit claim for refund with the IRS in
accordance with § 7422(a). The IRS denied the claim in a
letter sent by certified mail and received by Plaintiff on
May 10, 2013. Because Plaintiff commenced this action more
than two years later -- on March 11, 2016 -- the action is
time barred under § 6532(a)(1). This time bar is
jurisdictional, because “[a] statute of limitations
requiring that a suit against the Government be brought
within a certain time period is one of [the] terms”
that defines the scope of the Government's waiver of
sovereign immunity. Dalm, 494 U.S. at 608.
Accordingly, Defendant's motion to dismiss pursuant to
Rules 12(b)(1) and 12(h)(3) for lack of subject matter
jurisdiction is granted. See Wichita Ctr. for Graduate
Med. Educ. v. United States, No. 16 Civ. 1054, 2016 WL
7386454, at *2 (D. Kan. Dec. 21, 2016) (denying motion for
class certification ...