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Stephen Noret, et al. v. Department of the Treasury

February 1, 2012

STEPHEN NORET, ET AL.
PLAINTIFFS,
v.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ON DEFENDANTS' MOTION TO DISMISS COMPLAINT (DOC. 9)

I. INTRODUCTION.

Stephen and Rita Kay Noret ("Plaintiffs") bring this complaint in pro persona against the Internal Revenue Service ("IRS") and the Department of Treasury (the "Government"), claiming the IRS wrongfully denied Plaintiffs a refund based on Stephen Noret's Uniformed Service Retirement Pay between 1998 -- 2003. The Government moves to dismiss, asserting that (1) the United States has not waived sovereign immunity for this suit, (2) the Complaint has not been properly served on the United States, and (3) the Complaint does not state a claim upon which relief requested can be granted. Plaintiffs did not file an opposition.

II. LEGAL AND FACTUAL BACKGROUND.

The Complaint concerns Mr. Noret's claims for income tax refunds for years 1998, 1999, 2000, 2001, 2002, and 2003 based on a retroactive adjustment to the Plaintiff's retirement and disability pay. The Complaint states that in May 2008, the Department of Veteran Affairs made a disability determination which made part of Mr. Noret's Uniformed Service Retirement Pay non- taxable. Compl. at 1:22-23, ECF No. 1.

On the basis of this determination, on August 24, 2009, Mr. Noret filed a claim with the IRS seeking a refund of $261 for tax year 2003. Id. at 4. On May 5, 2010, Mr. Noret filed refund claims for the following years and amounts: 1998 ($75), 1999 ($854), 2000 ($323), 2001 ($341.68), and 2002 ($300). Id. at 5. The IRS denied the refund claim for 2003 on October 8, 2009, and denied the refund claims for the other years on August 19, 2010. Id. at 3.

On October 7, 2011, Plaintiffs filed this Complaint, alleging that the Government "caused [Plaintiffs] financial harm. . . by disallowing submitted 1040X amended tax claims for tax years of 1998, 1999, 2000, 2001, 2002, and 2003" Id. at 1:17-19. Plaintiffs seek monetary relief of "$5000.00 for each tax year that was unjustly denied " or other relief that the Court deems fair, just, and equitable. Id. at 2:13.

III. LEGAL STANDARD.

A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). In deciding whether to grant a motion to dismiss, the court "accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences" in the light most favorable to the nonmoving party. Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). To survive a motion to dismiss, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citing Twombly, 550 U.S. 556-57).

Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While the standard does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). A court need not permit an attempt to amend a complaint if "it determines that the pleading could not possibly be cured by allegation of other facts." Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990).

In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Fed. R. Evid. 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988).

IV. DISCUSSION.

A. Subject Matter Jurisdiction and ...


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