The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
This matter is before the court on the government's motion to dismiss the amended complaint, filed October 15, 2009. After hearing oral argument, the court on April 30, 2010 ordered plaintiff to file, within 28 days, a declaration and a supplemental physician statement concerning his request for equitable tolling of the statute of limitations. Plaintiff has not filed that evidence. Therefore, the court now issues the following findings and recommendations, most of which is repeated from the April 30th order.
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 did not file an opposition to the motion to dismiss, but instead filed a document entitled, "motion to amend" the complaint, and also requested appointment of counsel. After reviewing the motion to amend and plaintiff's exhibits, the undersigned on April 30, 2010 denied plaintiff's motion to amend and for appointment of counsel. In that order, the undersigned also informed plaintiff of the deficiencies in his evidence and directed him to provide further specific evidence to support his request for equitable tolling. Plaintiff has not responded to that order. Therefore, the motion to dismiss will be analyzed on the record before the court.
I. 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 the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699-700, 7 L.Ed. 2d 663 (1962).
Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn2
The validity of the underlying tax liability is reviewed de novo.*fn3 Ruth v. U.S., 823 F.2d 1091 (11th Cir. 1987); Laszloffy v. Commissioner of Internal Revenue, 297 Fed. Appx. 628, 2008 WL 4706626 (9th Cir. 2008). Strom v. United States, 583 F.Supp.2d 1264, 1270 n. 3 (W.D. Wash. 2008). "The Court must make a de novo determination of plaintiffs' right to a refund: the impressions and conclusions of the IRS during the administrative process are not relevant to the accurate assessment of taxes..." Strom, 583 F. Supp.2d at 1270 n. 3 (citations omitted).
The statute of limitations on a claim for credit or refund is three years from the time the return was filed, or two years from the date the tax was paid, whichever is later, or if no return was filed, the claim must be filed within two years from the time the tax was paid. 26 U.S.C. § 6511(a). [T]imely filing of a refund claim [is] a jurisdictional prerequisite to bringing suit." Zeier v. United States Internal Revenue Service, 80 F.3d 1360, 1363 (9th Cir. 1996) (quoting Commissioner v. Lundy, 516 U.S. 235, 240 (1996)); Omohundro v. United States, 300 F.3d 1065, 1067 (9th Cir. 2002). The statute of ...