The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before the court is defendant's motion to dismiss plaintiff's compliant on the ground that the court lacks subject matter jurisdiction because plaintiff has failed to establish that the United States has waived its sovereign immunity as to plaintiff's claim for a tax refund.*fn1 (Dkt. No. 19.) Plaintiff, who is proceeding without counsel and in forma pauperis, did not file an opposition to defendant's motion to dismiss. This matter was submitted on the briefs and record on December 3, 2009. (Dkt. No. 22.) For the reasons stated below, the undersigned recommends that defendant's motion be granted and that plaintiff's complaint be dismissed.
On October 14, 2008, plaintiff James Roy McNeil filed his complaint in this action seeking a federal tax refund (Dkt. No. 1).*fn2 Plaintiff alleges that from January 1999 through June 1999, he performed work for a contractor named Steve Relaford at a company named OTTO Services. (Pl.'s Compl. at 3 (Dkt. No. 1).) He further alleges that the Internal Revenue Service ("IRS") failed to issue to him a refund of federal taxes that he alleges he overpaid for the 1999 tax year. (Id.) Plaintiff also alleges that he complained to the IRS in writing, but that the IRS did not respond to his correspondence. (Id. at 3.) Plaintiff demands a monetary award of $3,000. (Id. at 4.)
Defendant filed the motion to dismiss at issue seeking to dismiss plaintiff's complaint on the ground that the court lacks subject matter jurisdiction because plaintiff has failed to establish that the United States waived its sovereign immunity as to plaintiff's claim.*fn3
(Defs.' Notice of Mot. & Mot. to Dismiss at 2 (Dkt. No. 19).) With its motion, defendant submitted additional evidence: (1) a declaration from IRS Advisory Insolvency Quality Advisor Michael Norris; (2) plaintiff's federal tax return for the year 1999, dated January 27, 2009 (Norris Decl., Ex. 1 at 1-2); and (3) a letter from plaintiff to the IRS, dated January 27, 2009 (Norris Decl., Ex. 1 at 3).*fn4
According to defendant's evidence, on February 3, 2009, the IRS received plaintiff's Form 1040 Individual Tax Return for the 1999 tax year, which was dated January 27, 2009, after plaintiff filed the operative complaint in this action. (Norris Decl. ¶ 3 & Ex. 1 at 2.) The 1999 tax return reports "wages, salaries, tips, etc." in the amount of "320.00 A week"; taxable refunds, credits, or offsets of state and local income taxes in the amount of $124,500; and an Individual Retirement Account distribution of $4,995. (Norris Decl. ¶ 3 & Ex. 1 at 1.) The entry fields for both taxable income and the claimed refund amount are blank. (Id.) Mr. Norris also declared that based on his review of information contained in the IRS's Integrated Data Retrieval System ("IDRS"): (1) plaintiff "had $633.00 in federal taxes withheld for the 1999 tax year," (2) the IRS did not receive a federal tax return or claim for refund for plaintiff for the 1999 tax year aside from plaintiff's February 3, 2009 submission, and (3) there is no IDRS record of federal income tax payments for the 1999 tax year made for plaintiff within three years of the IRS's receipt of plaintiff's February 3, 2009 submission. (Norris Decl. ¶¶ 4-5.)
As stated above, plaintiff did not file an opposition to defendant's motion to dismiss and, thus, has not rebutted or supplemented defendant's evidence.
Defendant's motion seeks dismissal of plaintiff's complaint for lack of subject matter jurisdiction on the ground that plaintiff has not established that the United States waived its sovereign immunity as to plaintiff's claim for a tax refund. To confer subject matter jurisdiction in an action against a sovereign, there must exist (1) "statutory authority vesting a district court with subject matter jurisdiction," and (2) "a waiver of sovereign immunity." Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007).*fn5 Because the (Norris Decl., Ex. 1 at 3.) As with the complaint, the letter states that plaintiff worked for Steve Relaford and Otto Services. (Id.)
United States is a sovereign, it is immune from suit unless it has expressly waived its immunity and consented to be sued. See Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007). The United States Supreme Court has "frequently held . . . that a waiver of sovereign immunity is to be strictly construed, in terms of scope, in favor of the sovereign." Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Moreover, the waiver cannot be implied, but must be "unequivocally expressed" in the statutory text. Id.; accord Harger v. Dep't of Labor, 569 F.3d 898, 903 (9th Cir. 2009). The party asserting a waiver of sovereign immunity bears "the burden of establishing that its action falls within an unequivocally expressed waiver of sovereign immunity by Congress. . . ." Dunn & Black, P.S., 492 F.3d at 1088.
When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the district court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (collecting cases), cert. denied, 489 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence."). Accordingly, the court may consider the evidence submitted by defendant in support of its motion to dismiss to the extent it aids resolution of this jurisdictional dispute.
Defendant first argues that plaintiff's complaint should be dismissed as prematurely filed because plaintiff failed to meet the conditions and limitations that Congress placed on the government's waiver of sovereign immunity. (See Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss at 4-6.) Specifically, defendant asserts that plaintiff's action was commenced prematurely because "[p]laintiff first filed his ...