The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VITO MANENTE,
Civil Action No. 23-1046
Plaintiff,
v. OPINION
UNITED STATES OF AMERICA,
January 13, 2025
Defendant.
SEMPER, District Judge.
The current matter comes before the Court on Defendant United States of America’s
(“Defendant”) Motion to Dismiss Vito Manente’s (“Plaintiff”) Complaint (ECF 1, “Compl.”).
(ECF 28, “MTD.”) Plaintiff opposed the Motion. (ECF 29, “Opp.”) The Court has decided this
motion upon the submissions of the parties, without oral argument, pursuant to Federal Rule of
Civil Procedure 78 and Local Civil Rule 78.1. For the reasons stated below, Defendant’s Motion
to Dismiss for Lack of Jurisdiction is GRANTED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
Plaintiff asserts the IRS incorrectly imposed penalties on Plaintiff and has failed to
recognize Plaintiff’s “legally filed return” for tax year 2019. (ECF 1, Compl. ¶ 6.) Plaintiff
contends he filed 1040 filings for tax year 2019 in or about early March 2020, but the IRS sent a
Notice of Deficiency (“NOD”) regarding alleged deficiencies on June 3, 2022. (Id. ¶¶ 5, 7, 10.)
The NOD asserted an alleged deficiency for federal income taxes of $15,389 and “Penalty IRC
1 The facts and procedural history are drawn from the Complaint (ECF 1, Compl.) and documents integral to
or relied upon by the Complaint. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
6662” in the amount of $1,727.40, all which Plaintiff disputes. (Id. ¶¶ 8-9.) Plaintiff contends he
is not liable for any amount, there was no underpayment existing for his federal income tax
liabilities for the 2019 tax year, and the entirety of the NOD is incorrect. (Id. ¶¶ 11-13.) All of
Plaintiff’s internal appeals were either “not responded to or denied.” (Id. ¶ 15.)
On February 22, 2023, Plaintiff filed this Complaint against the Commissioner of Internal
Revenue Service. (ECF 1.) On May 2, 2023, Defendant filed an Answer to the Complaint. (ECF
5.) On June 28, 2024, Defendant filed the instant motion.
II. LEGAL STANDARD
In deciding a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court
must first determine whether the party presents a facial or factual attack because the distinction
determines how the pleading is reviewed. Elbeco Inc. v. Nat’l Ret. Fund, 128 F. Supp. 3d 849, 854
(E.D. Pa. 2015) (internal quotation marks and citation omitted). A facial attack “contests the
sufficiency of the complaint because of a defect on its face,” whereas a factual attack “asserts that
the factual underpinnings of the basis for jurisdiction fails to comport with the jurisdictional
prerequisites.” Id. Here, Defendant asserts a factual attack. A factual attack is an argument that
there is no subject matter jurisdiction because the facts of the case—and therefore the District
Court may look beyond the pleadings to ascertain the facts—do not support the asserted
jurisdiction. Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). For a
factual attack, “the trial court is free to weigh the evidence . . . and the existence of disputed
material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.” Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977).
When a party challenges a federal court's subject matter jurisdiction, “the plaintiff [has]
the burden of proof that jurisdiction does in fact exist.” Id. In lawsuits against the United States,
the Court begins with the presumption that “[t]he United States, as sovereign, is immune from suit
save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538
(1980) (internal quotations and citation omitted). “A waiver of sovereign immunity cannot be
implied but must be unequivocally expressed,” Id. (internal quotations and citation omitted), and
such a waiver must be “narrowly construed.” United States v. Nordic Vill. Inc., 503 U.S. 30, 34
(1992).
III. ANALYSIS
a. The Court Does Not Have Jurisdiction to Entertain Plaintiff’s Claims
Defendant argues that this Court lacks subject matter jurisdiction over the entirety of the
Complaint. (See MTD at 1.) The Court agrees.
i. 28 U.S.C. § 1346(a)(1)
Pursuant to 28 U.S.C. § 1346(a)(1), district courts have original jurisdiction over civil
actions against the United States “for the recovery of any internal-revenue tax alleged to have been
erroneously or illegally assessed or collected, or any penalty claimed to have been collected
without authority[.]” 28 U.S.C. § 1346(a)(1). However, absent a waiver, sovereign immunity
shields the United States and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994).
Statutory waivers of federal sovereign immunity implicate a court’s subject matter jurisdiction.
CNA v. United States, 535 F.3d 132, 140 (3d Cir. 2008). To be effective, “[w]aivers of the
Government’s sovereign immunity . . . must be ‘unequivocally expressed.’” United States v.
Nordic Vill., Inc., 503 U.S. 30, 33 (1992). Congress has waived the government’s sovereign
immunity for tax matters under certain circumstances.
Regardless of how Plaintiff phrases his claims, one of his clearly stated prayers for relief
is to “recover moneys wrongfully withheld by the Commissioner of Internal Revenue” pursuant to
26 U.S.C. § 7422 or 7426. (Compl. ¶ 1.) Plaintiff contends that he is entitled to recovery because
the IRS has “failed to recognize a legally filed return” that “[n]o underpayment of Plaintiff’s
Federal income tax liabilities exists as determined by the IRS in the NOD for the 2019 tax year”
and that “the IRS erred, because the purported NOD was improperly issued by a party without the
delegated authority to do so . . . .” (Compl. ¶¶ 6, 13, 17.) Thus, Plaintiff seeks to recover a penalty
that was purportedly collected without authority. Plaintiff, therefore, can only assert these claims
against Defendant within the confines of Congress’ waiver of sovereign immunity.
28 U.S.C. § 1346, provides:
The district courts shall have original jurisdiction, concurrent with
the United States Court of Federal Claims, of . . . [a]ny civil action
against the United States for the recovery of any internal-revenue
tax alleged to have been erroneously or illegally assessed or
collected, or any penalty claimed to have been collected without
authority or any sum alleged to have been excessive or in any
manner wrongfully collected under the internal-revenue laws . . . .
For a federal district court to exercise jurisdiction over a tax refund claim under § 1346, the
taxpayer must have paid the assessment in full.2 Komlo v. United States, 657 F. App’x 85, 87 (3d
Cir. 2016); Koss v. United States, 69 F.3d 705, 708 (3d Cir.1995) (quoting Flora v. United
States, 362 U.S. 145, 177 (1960)).
ii. 26 USC § 7422
Section 7422 of the Internal Revenue Code authorizes taxpayers to file suit against the
United States to recover “any internal revenue tax alleged to have been erroneously or illegally
assessed or collected.” However, subject to the above, “for jurisdiction to exist in the district courts
2 The correct forum to contest an unpaid assessment is the United States Tax Court. Di Natale v. United States, 12
Cl. Ct. 72, 74 (1987).
pursuant to 26 U.S.C. § 1346(a)(1), payment of full tax before suit is required.” Ochsner v. United
States, No. 06-0219, 2006 WL 2226346, at *2 (D.N.J. Aug. 2, 2006) (contrasting district court
jurisdiction with Tax Court jurisdiction where taxpayers may challenge tax assessments before
paying the liability). Here, Plaintiff did not fully pay his 2019 tax liability before bringing this suit
as he still owed over $11,000 of his tax liability.3 (See ECF 28-1, D’Aries Decl., Ex. A.) Although
Plaintiff has paid a portion of his approximate $17,000 tax assessments, Flora established a “full-
payment rule” that has been “extended to apply to a full unpaid liability including interest fines
and not just a partially paid deficiency assessment.” Ochsner, 2006 WL 2226346, at *2; 28 U.S.C.
§ 2201(a). Accordingly, this Court lacks subject matter jurisdiction as to Plaintiff’s claims pursuant
to 26 U.S.C § 7422.
iii. 26 USC § 7426
Furthermore, Section 7426 of the Internal Revenue Code authorizes civil suits against the
Government for alleged wrongful levies and other actions by any person “other than the person
against whom is assessed the tax out of which such levy [or other action] arose.” 26 U.S.C. § 7426.
Here, Plaintiff is the individual against whom the tax was assessed, and he has brought this suit on
his own behalf. Therefore, Section 7426 does not apply and does not grant the Court jurisdiction
in this matter. See Manente v. Bluemel, No. 19-9665, 2020 WL 7028551, at *2 (D.N.J. Nov. 30,
2020) (dismissing Manente’s prior claim under Section 7426(h) “because the statute does not
authorize a suit by the taxpayer on behalf of themselves”) (citing Komlo v. United States, 657 F.
App’x 85, 88 (3d Cir. 2016)).
3 “In the case of a factual challenge, the court is free to consider and weigh evidence outside the pleadings to
resolve factual issues bearing on jurisdiction and to satisfy itself as to the existence of its power to hear the case.”
Daily v. City of Phila., 98 F. Supp. 2d 634, 636 (E.D. Pa. 2000).
IV. CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss (ECF 28) is GRANTED, and
Plaintiff’s Complaint (ECF 1) is DISMISSED without prejudice. An appropriate order follows.
/s/ Jamel K. Semper .
HON. JAMEL K. SEMPER
United States District Judge
Orig: Clerk
cc: James B. Clark, U.S.M.J.
Parties