CHRISTINE J. ERICKSON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
KANDIS A. WESTMORE, Magistrate Judge.
On January 18, 2013, Plaintiff Christine J. Erickson filed this action against the United States for the refund of a tax she paid that was owed by her ex-husband to remove a lien from her property. (Compl., Dkt. No. 1, ¶ 9.)
On May 16, 2013, the Court held a hearing, and after careful consideration of the parties' arguments, for the reasons set forth below, the Court GRANTS Defendant's Motion to Dismiss without leave to amend, because the district court lacks subject matter jurisdiction to hear this suit due to Plaintiff's failure to exhaust her administrative remedies, such that any amendment to the pleadings would be futile.
On January 18, 2013, Plaintiff filed her Complaint with the Court seeking a refund of $9, 970.60 she paid to the IRS in 2011 to satisfy an United States Internal Revenue Service ("IRS") lien that was attached to her real property. (Compl., ¶ 17). On October 14, 2010, pursuant to a court order, the deed of real property at 1012 Park Road NW, Washington, D.C. 20010 ("the property") was transferred to Plaintiff from her ex-husband, Abdy Dara. ( Id., Ex. 1). Thereafter, in December 2010, Plaintiff attempted to sell the property. ( Id. at ¶ 6). On January 6, 2011, Mr. J. Whetstone Hutton, power of attorney for Plaintiff, discovered a federal tax lien against the property in the name and social security number of Mr. Dara. ( Id. at ¶ 7).
On January 7, 2011, Plaintiff filed an "Application for Certificate of Discharge of Property from Federal Tax Lien" with the IRS. ( Id. at ¶ 8; Def.'s Reply, Ex. B.). On January 21, 2011, Plaintiff paid the federal tax lien in the amounts as follows: unpaid balance of $7, 897.67, $2, 072.52 in interest, and a penalty of $0.01 for a total payment of $9, 970.60. ( Id. at ¶ 9).
On March 24, 2011, the IRS informed Plaintiff that the tax lien payment was premature and that her only recourse was to petition the court within 120 days from the payment date of January 24, 2011, for a refund of the deposit payment. ( Id. at ¶ 10; Ex. 4).
On May 14, 2011, Plaintiff filed a petition for a refund of $9, 970.60 with the United States Tax Court. ( Id. at ¶ 11). On September 16, 2011, the Tax Court denied Plaintiff's petition for lack of jurisdiction. ( Id. at ¶ 12).
On January 18, 2013, Plaintiff initiated this action by filing the Complaint for a refund of $9, 970.60 plus statutory interest, attorneys' fees, and costs. ( Id. at ¶ 17). The Government filed a motion to dismiss on April 11, 2013. (Def.'s Mot. to Dismiss ("Def.'s Mot."), Dkt. No. 8.)
II. LEGAL STANDARD
A. Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
When a defendant submits a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing the propriety of the court's jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As a court of limited jurisdiction, "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). In the context of this motion, the Government argues, as a factual matter, that Plaintiff failed to exhaust her administrative remedies prior to filing her suit, and, as a result, the Court lacks jurisdiction, because the Government has not waived sovereign immunity.
B. Standing for Tax Refund
A plaintiff has standing to bring an action for refund under 28 U.S.C. § 1346(a)(1), even if the tax was not assessed against that individual. In United States v. Williams, the U.S. Supreme Court found that the broad language in § 1346(a)(1) authorized "a refund suit by a party who, though not assessed a tax, paid the tax under ...