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Ordonez v. U.S. Department of Treasury

United States District Court, Ninth Circuit

June 24, 2013

MARCO T. ORDONEZ, Plaintiff,



Plaintiff, a state prisoner proceeding pro se , filed this action on October 6, 2011, then filed an Amended Complaint on February 6, 2012. [Doc. No. 7.] On April 18, 2012, defendant United States of America filed a motion to dismiss the Amended Complaint. [Doc. No. 13.] On June 18, 2012, plaintiff filed an opposition to the motion. [Doc. No. 17.] On June 25, 2012, defendant filed a reply to the opposition. [Doc. No. 18.] The Court deems the matter suitable for submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). After reviewing the submissions of the parties, the Court hereby GRANTS WITH PREJUDICE the motion to dismiss.

I. Allegations of Amended Complaint

The Amended Complaint is entitled "Complaint for: Erroneously denied tax refund." [Doc. No. 7 at 1.] In it, plaintiff alleges that he is a prisoner at Calipatria State Prison and works in the prison as a Program Services Clerk for $.032 per hour. [Doc. No. 7 at 2, 4.] Plaintiff alleges he received compensation in the amount of $8, 946.00 for tax year 2006, and reported this on a Form 1040EZ. [Doc. No. 7 at 1.] Plaintiff also alleges that he provided a Form 4852 (a substitute for a form W-2) with the Form 1040EX. Id. Plaintiff alleges that the State of California does not issue W-2s to prison inmates. [Doc. No. 7 at 2.]

Plaintiff alleges that after he submitted his Form 1040Z, he received a letter from the IRS requesting proof of wages. Id. Plaintiff claims that he responsed by producing a copy of certain periodic pay statements. Id. On March 2, 2010, Plaintiff alleges he received a letter from the IRS informing him that his claim for refund was disallowed. Plaintiff alleges he appealed that decision by filing a Form 1040X on March 29, 2010. Plaintiff alleges the IRS denied his claim in August of 2010 and the IRS denied his second appeal on November 2, 2010. Id.

Plaintiff requests a declaratory judgment that: (1) affirms his and other similarly situated prisoners status as common law employees under I.R.C. § 3121(d)(2); (2) declares that a person in his position is in compliance with the law and not committing fraud by filing a tax return; (3) that services and property received by a prisoner are part of gross income under I.R.C. § 61; and (4) to recognize the legitimacy of his tax refunds and all other legitimate claims submitted by the incarcerated. [Doc. No. 7 at 5-6.] Additionally, plaintiff seeks compensatory damages of $1, 000, 000.00 for alleged emotional and psychological damage caused by the denial of his tax claims as well as $1, 000, 000.00 in punitive damges for violations of his rights under the eighth and fourteenth amendments to the constitution. [Doc. No. 7 at 6-7.]

II. Discussion

1. Legal Standard.

The plaintiff bears the burden of establishing subject matter jurisdiction and trial courts will presume a lack of jurisdiction until the plaintiff proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 377 (1994); Ass'n of American Medical Colleges v. U.S. , 217 F.3d 770, 778 (9th Cir.2000); Sun Microsystems Inc. v. Hynix Semiconductor Inc ., 2007 WL 1056783, *2 (N.D.Cal.2007). A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence. Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir.2003). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." See Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir.2004) (noting that an attack was factual where a defendant challenged plaintiff's contention that grass residue constitutes solid waste under RCRA). Here, defendant asserts a facial attack [Doc. No. 13-1 at 3]. Therefore, the Court must accept the complaint's allegations as true. Safe Air for Everyone , 373 F.3d at 1039.

2. Claim for tax refund.

The gravamen of plaintiff's complaint appears to be a claim for a tax refund. The United States, as a sovereign entity, is immune from suit except when it consents to be sued. United States v. Dalm , 494 U.S. 596, 608 (1990); United States v. Mitchell , 445 U.S. 535, 538 (1980). It is the plaintiff's burden to establish the jurisdiction of the court, and thus, plaintiff must show a waiver of sovereign immunity. See McNutt v. General Motors Acceptance Corp. , 298 U.S. 178, 188 (1936).

Plaintiff fails to show that the United States has waived immunity from suit here. Section 7422(a) of the Internal Revenue Code provides that "[n]o suit or proceeding can be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected... until a claim for refund or credit has been duly filed with the Secretary." 26 U.S.C. § 7422(a). Furthermore, in order for a district court to have jurisdiction over a suit for the refund of taxes, the taxpayer must first have paid the assessment, or a divisible portion thereof, for which relief is sought. See 26 U.S.C. §§ 7422(a), 6532(a); Thomas v. United States , 755 F.2d 728, 729 (9th Cir.1985); Flora v. United States , 362 U.S. 145 (1960).

Here, plaintiff fails to allege what amout of tax Plaintiff owed for the 2006 tax year or the amount of tax he was assessed for that year. [Doc. No. 7 at 2-5.] More importantly, plaintiff does not allege that he fully paid whatever amount of tax he was assessed (if any). Full payment of the assessed amount of taxes is a legal prerequisite to a suit for refund. See I.R.C. § 7422; Flora , 362 U.S. at 150-151. Without an allegation of full payment, plaintiff's Amended Complaint fails to establish that subject matter jurisdiction exists for a suit for refund. See Del Elmer; Zachay v. Metzger , 967 F.Supp. 398, 405 (S.D. Cal. 1997)(where plaintiff has failed to allege jurisdictional prerequisites for a refund suit, the Court lacks subject matter jurisdiction). In his opposition, ...

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