United States District Court, E.D. California
ORDER VACATING HEARING, ORDER SUBSTITUTING PARTY, AND
ORDER ON DEFENDANT'S RULE 12(B)(1) MOTION TO DISMISS
(DOC. NO. 18)
a tax dispute between pro se Plaintiff Audrey Mays and
Defendant Internal Revenue Service (“IRS”) for a
tax refund. Currently before the Court is a Rule
12(b)(1) motion to dismiss. Hearing on this motion is
currently set for November 25, 2019, at 1:30 p.m. Plaintiff
has not filed an opposition to the motion. After review, the
Court has determined that the motion is suitable for decision
without oral argument. See Local Rule 230(g). The
Court will vacate the November 25, 2019, hearing and issue
this order, which resolves the pending Rule 12(b)(1) motion
the Second Amended Complaint, at an unknown time, Plaintiff
received a notice from the California Franchise Tax Board
that stated she needed to file a tax return for the year
2012. Plaintiff went to her CPA, who appears to have
determined that Plaintiff owed the State of California taxes.
However, the CPA determined that Plaintiff was owed a refund
of $6, 112 from the United States. Plaintiff was told, either
by her CPA or the IRS, that due to the timeframe involved,
she would not receive the refund. Plaintiff filed a claim and
an appeal with the IRS for the $6, 000 refund, but her claim
Rules of Civil Procedure 12(b)(1)allows for a motion to
dismiss based on lack of subject matter jurisdiction.
See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental
precept that federal courts are courts of limited
jurisdiction. Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978); K2 Am. Corp. v.
Roland Oil & Gas, 653 F.3d 1024, 1027 (9th Cir.
2011). Limits upon federal jurisdiction must not be
disregarded or evaded. Owen Equip., 437 U.S. 365,
374 (1978); Jones v. Giles, 741 F.2d 245, 248 (9th
Cir. 1984). “It is presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994); K2 Am., 653 F.3d at 1027. Rule 12(b)(1)
motions may be either facial, where the inquiry is confined
to the allegations in the complaint, or factual, where the
court is permitted to look beyond the complaint to extrinsic
evidence. See Leite v. Crane Co., 749 F.3d 1117,
1121 (9th Cir. 2014); Safe Air For Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a
defendant challenges jurisdiction “facially, ”
all material allegations in the complaint are assumed true,
and the court determines whether the factual allegations are
sufficient to invoke the court's subject matter
jurisdiction. See Leite, 392 F.3d at 362;
Meyer, 373 F.3d at 1039. When a defendant makes a
factual challenge “by presenting affidavits or other
evidence properly brought before the court, the party
opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction.” Meyer, 373 F.3d at 1039;
see Leite, 749 F.3d at 1121. The court need not
presume the truthfulness of the plaintiff's allegations
under a factual attack. Wood v. City of San Diego,
678 F.3d 1075, 1083 n.2 (9th Cir. 2011). The plaintiff must
show by a preponderance of the evidence each requirement for
subject-matter jurisdiction, and as long as the dispute is
not intertwined an element of the plaintiff's cause of
action, the court may resolve any factual disputes itself.
Leite, 749 F.3d at 1121.
argues that because it is an agency of the United States, and
because congress has not authorized suit against the IRS, the
United States should be substituted as a party in place of
from substitution, Defendant argues that it is making a
facial and factual attack against the SAC. Plaintiff's
refund suit is untimely under 26 U.S.C. § 6511(b), which
limits refunds to amounts paid within 3 years of filing the
claim for a refund. Plaintiff filed her request for a refund
on January 11, 2017. Under § 6511(b), Plaintiff could
seek a refund on amounts paid between January 11, 2014 and
January 11, 2017. However, per Plaintiff's Form 4340, the
only amount collected by the IRS relating to Plaintiff's
2012 tax liability was collected on April 15, 2013. Thus,
under § 6511(b), Plaintiff's attempt to obtain a
refund is untimely and dismissal is appropriate.
has filed no opposition.
it is necessary to substitute parties. In a suit for a tax
refund under 26 U.S.C. § 7422(a), the proper defendant
is the United States, not the IRS or a governmental employee
or officer. See 26 U.S.C. § 7422(f)(1);
Venegas v. IRS, 2018 U.S. Dist. LEXIS, 117154, *2
(D. Mass. June 14, 2018). West v. United States,
2007 U.S. Dist. LEXIS 11617, *1 n.1 (W.D. Was. Feb. 20,
2007). Therefore, the Court will substitute the United States
as the only defendant in this matter in place of the IRS.
See 26 U.S.C. § 7422(f)(2); Venegas,
2018 U.S. Dist. LEXIS 117154 at *2; West, 2007 U.S.
Dist. LEXIS 11617 at *1 n.1.
26 U.S.C. § 7422(a), no suit for a tax refund may
proceed “until a claim for refund or credit has been
duly filed with the Secretary . . . .” 26
U.S.C. § 7422(a) (emphasis added). In order to be
considered “duly filed, ” a claim for a tax
refund “must be filed in accordance with, inter
alia, the provisions of [26 U.S.C.] § 6511.”
Imperial Plan, Inc. v. United States, 95 F.3d 25, 26
(9th Cir. 1996). 26 U.S.C. § 6511(b) contains
“lookback” provisions that “effectively
eliminate any danger of taxpayers recovering on stale
claim.” Omohundro v. United States, 300 F.3d
1065, 1069 (9th Cir. 2002). In relevant part, § 6511(b)
limits a claim for a refund to amounts paid within 3 years of
the date of filing of the refund claim. See 26
U.S.C. § 6511(b)(2)(A); Reynoso v. United
States, 692 F.3d 973, 978 (9th Cir. 2012); Ehle v.
United States, 720 F.2d 1096, 1096 (9th Cir. 1983).
Section 6511(b)(2)(A)'s lookback period is