The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
This matter came before the court for hearing on the government's motion to dismiss the amended complaint, filed October 15, 2009, and plaintiff's motion to amend the complaint and appoint counsel, filed October 6, 2009. Colin Sampson of the U.S. Department of Justice, Tax Division, appeared on behalf of defendant United States of America. Plaintiff appeared in pro se. Having considered all written materials submitted with respect to the motion and after hearing oral argument, the court now issues the following order requiring further evidence.
This action was initiated by plaintiff on January 20, 2009 for refund of allegedly overpaid income taxes for 2001. The complaint alleges that plaintiff's late filed tax return, dated September 24, 2006, for tax year 2001, was denied improperly as he was suffering from a severe mental illness at the time which prevented him from timely filing a tax refund request. He claims that an appeals officer for the IRS, Jan Gilbert, informed him that he met the requirements for filing late tax returns due to his mental illness. (Compl. at 1.) He claims he is owed a refund of over $4,000 for overpaid taxes for that year. The government claims that plaintiff's claim is barred by the statute of limitations and he is not entitled to equitable tolling.
According to the government, plaintiff filed his 2001 federal income tax return on September 24, 2006, claiming a refund of overpaid taxes for the 2001 tax year. (Gilbert Decl., ¶ 3.) This claim was denied as untimely. Appeals Officer Gilbert determined that plaintiff had not satisfied the requirements for suspending time for filing a tax refund under 26 U.S.C. § 6511. In moving to dismiss the complaint, the government argues that plaintiff's claim is time-barred pursuant to 26 U.S.C. § 6511(b)(2)(A), because he did not pay taxes for which he is seeking a refund within three years prior to the time he filed his administrative claims. Further, the government claims that plaintiff's excuse of being financially disabled due to medical or mental impairments are not sufficient to toll the limitations period pursuant to 26 U.S.C. § 6511(h) as described in Internal Revenue Service Revenue Procedure 99-21. Therefore, the United States moves to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.
Plaintiff has not filed an opposition to the motion to dismiss, but has filed a document entitled, "motion to amend" the complaint. He has attached numerous exhibits to his motion which have now been reviewed.
I. MOTION TO AMEND COMPLAINT AND APPOINT COUNSEL
On October 6, 2009, plaintiff filed a document styled, "motion to amend," which the government construed as an amended complaint, and thereafter moved to dismiss it.*fn2 (Dkt. #12.) The government thereafter filed a notice of non-opposition to the motion to amend. (Dkt. #15.) The "motion to amend," when construed as an amended complaint, does not appear to be complete in and of itself. It requests appointment of counsel, and attaches exhibits supporting plaintiff's claimed mental incapacity which is explained in the original complaint. (Dkt. #12.) The undersigned will therefore construe plaintiff's filing as a motion to amend the complaint, and consider the motion to dismiss as directed toward the original complaint.
Plaintiff's motion to amend appears to add evidence rather than claims, which is not the purpose of an amended complaint. The main issue to be decided at this stage of the proceedings is whether plaintiff is entitled to statutory equitable tolling of the statute of limitations. This question will not be answered through further amendment, but rather through further evidence. Therefore, plaintiff's motion to amend is denied.
Plaintiff's request for appointment of counsel is also denied as appointment of counsel will not aid in the determination of these questions. The district court has discretion under 28 U.S.C. § 1915(e)(1) to request counsel to represent an indigent civil litigant. First, however, the court must evaluate both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See, e.g., Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). On the record before it, the court cannot find a likelihood of success on the merits. See Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir.1984) (motions to appoint counsel granted only in exceptional circumstances and at discretion of trial court). Moreover, the legal issues are not complex, but are capable of determination without counsel.
A. LEGAL STANDARD FOR MOTION TO DISMISS
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979). Different standards apply to a 12(b)(1) motion, depending on ...