Sintow v. United States

United States District Court

for the

Southern District of Florida

Roderick Sintow and Irene Sintow, )

Plaintiffs, )

)

Civil Action No. 22-20160-Civ-Scola

v. )

)

United States of America, )

Defendant.

Order Granting Dismissal With Prejudice

Plaintiffs Roderick and Irene Sintow brought suit seeking a tax refund of

$172,176 plus interest, which they said they were due in connection with an

amendment to their 2014 tax return. (Compl., ECF No. 1.) The Internal

Revenue Service (“IRS”) previously denied that refund request. However, after

the Sintows filed suit, the IRS issued them a check for $220,145.29, which

represents the $172,176 originally sought plus interest of $47,969.29. (Mot. 2,

ECF No. 8.) The IRS also issued each Plaintiff a letter confirming that their

amendment had been processed. (See ECF Nos. 9-1.)

Before the Court is the Government’s motion to dismiss (ECF No. 8),

which argues that the Court lacks subject-matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) because the IRS’ refund renders this suit moot.

(Id. 3.) The Sintows disagree and say the possibility that the Government will

later sue to recover the refunded amount leaves an actionable controversy

before the Court. (Opp. 5, ECF No. 9.) For the reasons below, the Court agrees

that this case is moot and grants the Government’s motion to dismiss (ECF

No. 8) for lack of subject-matter jurisdiction.

1. Legal Standard

Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two

forms: “facial attacks” and “factual attacks.” Lawrence v. Dunbar, 919 F.2d

1525, 1528-29 (11th Cir. 1990). Facial challenges to subject matter jurisdiction

are based solely on the allegations in the complaint. Carmichael v. Kellogg,

Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). Thus, the

court will “look at the face of the complaint and determine whether the plaintiff

has alleged a sufficient basis for subject matter jurisdiction.” Scelta v.

Delicatssen Support Servs., Inc., No. 98–2578–CIV–T–17B, 1999 WL 1053121,

at *4 (M.D. Fla. Oct. 7, 1999) (cleaned up). Factual attacks, on the other hand,

challenge “the existence of subject matter jurisdiction in fact, irrespective of the

pleadings,” and the court may consider “matters outside the pleadings, such as

testimony and affidavits.” Lawrence, 919 F.2d at 1529 (internal quotation

marks omitted).

Further, “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.” Garcia v.

Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see

Lawrence, 919 F.2d at 1529.

2. Discussion

The Government asserts a factual challenge to the Sintows’ suit by

arguing that events following the complaint’s filing have rendered this case

moot. “An issue is moot when it no longer presents a live controversy with

respect to which the court can give meaningful relief.” Christian Coal. of Fla.,

Inc. v. United States, 662 F.3d 1182, 1190 (11th Cir. 2011) (cleaned up). Moot

cases do not present “controversies” in the sense of Article III and thus do not

fall within federal courts’ subject-matter jurisdiction. An exception to the

mootness doctrine exists where issues are “capable of repetition yet evading

review.” The Sintows argue that their case is not moot and that it qualifies for

this exception. The Court disagrees.

1. Mootness

The Sintows’ prayer for relief requests a judgment in the amount of

$172,176 plus interest. The IRS has made payment for that amount, but the

Sintows say that is not enough. They want reassurance that the Government

will not attempt to recover that refund. As such, they argue that the preclusive

effect of a judgment from this Court entitling them to the refund is the relief

they seek—not just a refund. (See Opp. 5.) Because the Court has not rendered

a judgment in their favor and against the Government, they say this case is not

moot.

To be clear, the Sintows have not sued for declaratory relief. The sole

count in the complaint is one for a refund of their 2014 taxes. (See Compl.

¶ 46.) Nevertheless, their insistence on a judgment’s preclusive effect in the

amount of their refund indicates that, at this juncture, they effectively seek the

same sort of relief a declaratory or injunctive judgment would have. That is,

one that would preclude the Government from suing to collect the refund in the

future. Under the Anti-Injunction Act, this Court lacks jurisdiction over suits

presented “for the purpose of restraining the assessment or collection of any

tax[.]” 26 U.S.C. § 7421(a). Thus, the Court cannot enter a judgment for the

purpose of precluding the Government from pursuing a tax liability against the

Sintows in the future.

Because the Sintows sued for, and obtained, “a refund of $172,176, plus

interest[,]” (Compl. ¶ 46), this case is moot. The Eleventh Circuit’s analysis in

Christian Coalition is on point. 662 F.3d 1182. There, the Christian Coalition of

Florida sued for tax refunds and a declaratory determination that it was a tax-

exempt organization. After litigation began, the IRS refunded certain payments

and qualified others as over-payments. The district court dismissed the suit as

moot in light of the post-litigation refunds. Id. at 1185-86. On appeal, the

Christian Coalition argued that its case was not moot because it sought more

than the mere refund of $261 in taxes—it also sought reassurance concerning

its tax-exempt status in the form of declaratory relief. See id. at 1193. That

declaratory relief would effectively preclude the IRS from fiscally treating the

Christian Coalition as a non-tax-exempt organization.

The Eleventh Circuit found that the absence of a live refund dispute

rendered the case moot: “While CC–FL wanted to obtain its refund on the most

favorable grounds possible, a refund is a refund, and the IRS returned all of

the disputed taxes shortly after this litigation began . . . absent any live

refund component, the district correctly concluded that it was without

jurisdiction to entertain a suit containing solely forward-looking claims seeking

declaratory and injunctive relief from the IRS.” Id. at 1192. The Sintows

attempt to distinguish Christian Coalition by pointing out that: (1) the plaintiff

there sought declaratory (i.e. forward-looking) relief and (2) the IRS conceded

that the plaintiff was entitled to the refunds unlike here. (Opp. 4.)

Those arguments fail. First, despite the Sintows’ representation that they

are not seeking a “a determination with respect to the future,” (id.), their

motivation in insisting on a judgment at this juncture is precisely for the

purpose of arriving at a “final resolution with respect to their refund” (id.) to

secure against future litigation from the IRS. (See id.) As such, the factual

differentiation that the plaintiff in Christian Coalition affirmatively sought the

preclusive relief that the Sintows indirectly seek is unavailing.

Second, the fact that the IRS conceded the plaintiff’s entitlement to the

refunds in Christian Coalition makes no practical difference. Despite that

concession, the Christian Coalition plaintiff’s future tax status remained

unresolved, and that was precisely why it argued that its case was not moot. In

parallel, the future status of the Sintows’ 2014 refund remains unresolved, and

that is precisely why they argue that their case is not moot.

The question of future tax status did not stop the district court or the

Eleventh Circuit from finding Christian Coalition moot. In fact, in ruling on

mootness, the district court did not even address whether the plaintiff was

“actually entitled to a refund[.]” See Christian Coal. of Fla., Inc. v. United States,

No. 509-CV-144-OC-10GRJ, 2010 WL 3061800, at *3 (M.D. Fla. Aug. 3, 2010),

aff'd, 662 F.3d 1182 (11th Cir. 2011). For these reasons, the IRS’ non-

concession of the Sintows’ entitlement to the refund is of no import to this

Court’s analysis.

The absence of a live tax dispute renders the Sintows’ suit moot. See

Christian Coal., 662 F.3d at 1190-92; Shanks v. United States, No. 8:12-CV-

2325-T-24, 2013 WL 5460040, at *1 (M.D. Fla. June 10, 2013).

2. Capable of Repetition Yet Evading Review

A rarely employed exception to the mootness doctrine exists for issues

“capable of repetition yet evading review.” It applies where “(1) the challenged

action is in its duration too short to be fully litigated prior to cessation or

expiration; and (2) there is a reasonable expectation that the same complaining

party will be subject to the same action again.” Christian Coal., 662 F.3d at

1195 (cleaned up).

The Sintows’ suit does not qualify this exception for three reasons. First,

a person’s entitlement to a tax refund does not present a matter that is “too

short” in duration to evade judicial review. See Weinstein v. Bradford, 423 U.S.

147, 149 (1975) (framing the inquiry along the lines of whether a matter’s

duration “was virtually impossible to litigate[.]”). As the Eleventh Circuit put it,

“nothing about the IRS's adverse determination or assessment and collection of

taxes is ‘too short to be fully litigated.’” Christian Coal., 662 F.3d at 1195. In

fact, the impetus behind the Sintows’ argument for a judgment at this juncture

is that the IRS may later seek judicial review of the Sintows’ entitlement to the

refund they claim. Thus, the Sintows plainly fail to meet the first prong of the

exception.

Second, nothing in the record suggests a reasonable expectation that the

IRS will wrongfully retain $172,176 stemming from the Sintows’ 2014 taxes in

the future. That purportedly wrongful retention is the subject of this suit, and

the second prong of the exception requires this same controversy to repeat

itself in the future—not a similar one. Christian Coal., 662 F.3d at 1195-96.

Thus, even if the IRS sued to recover the refund in the future, the controversy

presented there would not be the one here. At that point, the controversy would

no longer turn on a purportedly wrongful retention of the refund by the IRS.

Third, even if the same controversy originally sued upon somehow

recurred, it would, at minimum, prompt judicial review. This disqualifies the

controversy from the above exception: “even a likely recurrence is insufficient if

there would be ample opportunity for review at that time.” Al Najjar v. Ashcroft,

273 F.3d 1330, 1336 (11th Cir. 2001). For these reasons, the “capable of

repetition yet evading review” exception does not apply.

3. Conclusion

The Court grants the Government’s motion (ECF No. 8) and dismisses

this case with prejudice for lack of subject-matter jurisdiction. The Court

directs the Clerk to close this case. Any pending motions are denied as moot.

Done and ordered in Miami, Florida, on June 6, 2022.

{2 N. Scola, Jr.

United States District Judge