The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GERIC BROWN, §
Plaintiff, §
§
v. § No. 3: 25-CV-1890-N-BW
§
UNITED STATES OF AMERICA §
Defendant. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Geric Brown, proceeding pro se, initiated this action on July 21, 2025
and paid the filing fee. (See Dkt. Nos. 1, 3.) Brown asserts a claim against the
United States under 28 U.S.C § 1346(a)(1) alleging that he is owed an income tax
refund that has not been paid. (Dkt. No. 3.) This action was referred to the
undersigned magistrate judge for pretrial management and recommendation on
claim-dispositive matters pursuant to 28 U.S.C. § 636(b) and Special Order No. 3-
251. (See Dkt. No. 1.)
On December 10, 2025, the undersigned issued an Order to Show Cause with
Respect to Jurisdiction. (Dkt. No. 22.) Brown was ordered to file a written response
explaining the basis of the Court’s jurisdiction. (See id.) He did so on January 13,
2026. (See Dkt. No. 29.) The United States filed its response on February 2 (Dkt.
No. 32), and Brown filed a reply on February 10 (Dkt. No. 33).
Having considered the briefs and the relevant law, the undersigned
recommends, for the reasons set out below, that the Court dismiss this lawsuit for
lack of subject-matter jurisdiction.
I. BACKGROUND
Brown alleges in his complaint that he filed a Form 1040, U.S. Individual
Income Tax Return, for tax year 2023, requesting a refund of $20,249. (Dkt. No. 3.)
The Internal Revenue Service (“IRS”) issued a letter indicating that the refund would
be mailed to Brown, but he never received the refund. (Id.) Brown further alleges
that he has made “multiple attempts to resolve this matter, including contacting the
IRS directly and submitting Form 911 to the Taxpayer Advocate Service.” (Id.)
According to Brown, he used this same method for tax year 2024 and received a
refund without issue, apparently to highlight the “unjustified delay” of the 2023
refund. (Id.) Brown contends that as of the date of filing his complaint, he has
“exhausted all reasonable administrative remedies” through the IRS. (Id.)
The Government argues in response that although Brown filed an original
Form 1040 for tax year 2023 requesting a refund of $20,249, he only reported $5 of
income on line 1a of his Form 1040, which requires taxpayers to report the total
amount from Forms(s) W-2, Wage and Tax Statement. (Dkt. Nos. 32, 32-1 Ex. A.)
According to the IRS, Brown failed to report wages of $126,532.89, as shown on his
Form W-2 for 2023 from Grocery Delivery E-Services USA Inc, and therefore, his
tax was incorrectly assessed as zero. (Dkt. Nos. 32, 32-1. Ex. B.)
The Government explains that an IRS representative discovered the
discrepancy on Brown’s 2023 tax return where the tax was assessed as zero and
initially suspended Brown’s tax refund module on March 29, 2024, but the
representative released the suspension upon being told that the “IRS Automated
Underreporter Program would scoop it up [pick it up for audit]. [Brown’s] refund
claimed on his Form 1040 for tax year 2023, however, remained frozen.” (Dkt. No.
32-2 ¶ 7.) (Id.)
Thereafter, by notice dated April 15, 2024, the IRS informed Brown that,
“Your refund check will be sent to you by mail.” (Id. at ¶ 8.) After not receiving a
refund, Brown called the IRS on July 5, 2024 to inquire about his refund. (Id. at ¶ 9.)
An IRS representative advised Brown to send a complete Form 1040 with all
schedules and attachments, including Forms W-2, to the IRS Fresno campus to
resolve the freeze on the claimed refund. (Id.) On July 12, 2024, the Fresno campus
received a copy of Brown’s 2023 tax return, wherein he reported $5 as the total
amount from his Form W-2, along with his Form W-2 for tax year 2023 showing he
had actually received wages of $126,532.89 from Grocery Delivery E-Services. (Id.)
On December 10, 2025, the Court ordered Brown to show cause why this
action should not be dismissed for lack of jurisdiction. In response to the Court’s
order to show cause with respect to jurisdiction (see Dkt. No. 22), Brown merely
reiterated his contention that the Court has original jurisdiction under 28 U.S.C.
§ 1346(a)(1) because it is a civil action against the Government for a tax refund that
he has not received. (See generally Dkt. No. 29.)
On February 2, 2026, the Government filed a brief and supporting exhibits
contending that the Court lacks subject matter jurisdiction because Brown failed to
file a proper and timely claim for refund as required by 26 U.S.C. §§ 7422(a),
6511(A), 6532(a)(1) and Trea. Reg. §§ 301.6402-2, 301.6402.3. (See Dkt. No. 32.)
Thereafter, on February 10, 2026, Brown filed a reply merely persisting in his
contention that the Court has jurisdiction under 28 U.S.C. § 1346(a)(1), because he
filed a valid income tax refund claim which the IRS accepted and because a
subsequent year’s return was filed in the same manner. (See Dkt. No. 33 at ECF p. 2-
3.) He also argues—citing no authority—that “wage discrepancies do not render a
return invalid.” (Id. at ECF p. 3.)
II. LEGAL STANDARDS
The Court is required to consider, sua sponte if necessary, the basis of its
jurisdiction. Giannakos v. M/W Bravo Trader, 762 F.2d 1295, 1997 (5th Cir. 1985).
“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by
statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm'n, 138
F.3d 144, 151 (5th Cir. 1998). The Court must dismiss a cause for lack of subject
matter jurisdiction “when the court lacks the statutory or constitutional power to
adjudicate the case.” Home Builders Ass'n of Miss. v. City of Madison, Miss., 143 F.3d
1006, 1010 (5th Cir.1998) (internal quotation marks removed) (quoting Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). The Court will
not assume it has jurisdiction. Rather, “the basis upon which jurisdiction depends
must be alleged affirmatively and distinctly and cannot be established
argumentatively or by mere inference.” Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d
1254, 1259 (5th Cir. 1988) (citing Ill. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633,
636 & n.2 (5th Cir. 1983)).
“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party
asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof
that jurisdiction does in fact exist” in any case originally filed in federal court.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citations omitted).
And where, like here, a defendant files a Rule 12(b)(1) motion to dismiss, the
attack is presumptively “facial,” and the Court need look only to the sufficiency of
the allegations of the plaintiff's complaint, or on the complaint as supplemented by
undisputed facts, all of which are presumed to be true. See Paterson v. Weinberger, 644
F.2d 521, 523 (5th Cir. May 1981).
Under the doctrine of sovereign immunity, the Government cannot be sued
unless it has consented to suit. See Lehman v. Nakshian, 453 U.S. 156, 160 (1981).
Accordingly, “[a] plaintiff may only sue the Government if a federal statute explicitly
provides for a waiver of sovereign immunity.” In re FEMA Trailer Formaldehyde Prod.
Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 287 (5th Cir. 2012).
With respect to taxpayer suits against the IRS, Section 1346(a)(1) “operates in
conjunction with 28 U.S.C. § 7422 to provide a waiver of sovereign immunity in tax
refund suits only when the taxpayer has fully paid the tax and filed an administrative
claim for a refund.” Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir. 1994); see
also Fletcher v. United States, 452 F. App’x 547, 552-53 (5th Cir. 2011). After filing the
claim for refund, a taxpayer must allow six months to elapse before commencing an
action in district court, unless the IRS renders a decision on the claim within that
time. U.S.C. § 6532(a)(1). “Unless these requirements are met, a refund suit may
not be maintained.” Hamzik v United States, 64 Fed. Cl. 766, 766 (2005).
III. ANALYSIS
Related to his tax year 2023 refund, Brown contends that the Court is granted
jurisdiction over his claim by 28 U.S.C. § 1346(a)(1).1 The government argues
otherwise, stating that Brown’s failure to meet the statutory prerequisites for bringing
a tax refund action in district court does not establish that a waiver of sovereign
immunity. (See Dkt. No. 32.) Brown’s reply brief of five bare-bones points, with his
“argument” section totaling seven sentences. (See Dkt. No. 33.) Notably, Brown
does not dispute that his wages in 2023 wages totaled $126,532.89, which he did not
report on his Form 1040. In Brown’s view, he filed a valid return and requested a
refund, so “[a]ll administrative prerequisites are met.” (See Dkt. No. 33 § III-E.)
Despite his claims, however, Brown fails to demonstrate that he filed a proper and
timely claim for refund as required under 28 U.S.C. § 1346(a)(1). Therefore, this
Court lacks subject-matter jurisdiction over Brown’s claim for a tax refund.
1 28 U.S.C. § 1346(a)(1) provides that “[t]he 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 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[.]”
A plaintiff establishes a waiver of sovereign immunity in tax refund suits
under 28 U.S.C. § 1346(a)(1) when, operating in conjunction with 28 U.S.C. § 7422,2
“the taxpayer has fully paid the tax and filed an administrative claim for a refund.”
Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir. 1994); see also Fletcher v. United
States, 452 F. App’x 547, 552-53 (5th Cir. 2011). Here, Brown failed to file a proper
and timely claim for refund as required by 26 U.S.C. § 7422(a), § 6511(a),
§ 6532(a)(1), and Treas. Reg. § 301.6402-2; § 301.6402-3. Other than the original
Form 1040 (which Brown does not dispute failed to report all income), Brown does
not allege that he filed any other document constituting a refund claim. (Dkt. No.
33.) Further, the IRS has no record of Brown filing a form 843, Claim for Refund
and Request for Abatement, for tax year 2023. (Dkt. No. 32-2 at ¶ 5 - 6.)
Although Brown claims in his tax return that he is owed $20,249, his return
does not qualify as a claim for refund because it was not a properly executed return.
See 26 C.F.R. § 301.6402-3(a)(5). While an original tax return may constitute a claim
for refund, it must be properly executed. “A properly executed individual . . . original
income tax return . . . shall constitute a claim for refund or credit within the meaning
of section 6402 and section 6511 for the amount of the overpayment disclosed by
such return if it contains a statement setting forth the amount determined as an
2 28 U.S.C. § 7422(a) states, “No suit for proceeding shall be maintained in any court
for the recovery of any internal revenue tax alleged to have been erroneously or illegally
assessed or collected, or of any penalty claimed to have been collected without authority, or
of any sum alleged to have been excessive or in any manner wrongfully collected, until a
claim for refund or credit has been duly filed with the Secretary, according to the provisions
of law in that regard, and the regulations of the Secretary established in pursuance thereof.”
overpayment and advising whether such amount shall be refunded to the
taxpayer[.]” 26 C.F. R. §301.6402-3(a)(5).
“A broad constellation of cases has held that a return which lacks essential
financial information, and, in particular, contains no recitation of taxpayer’s income,
is not a properly executed return for purposes of the tax laws.” Hamzik, 64 Fed. Cl.
at 767-68; see Reinhart v. United States, No. EP-04-CA-4-DB, 2004 WL 1950335, at *2
(W.D. Tex. Sept. 2, 2004) (“[D]efendant avers that Plaintiff’s Form 1040A for 2001
claiming a refund based on the assertion that he had ‘zero’ in income or wages for
2001 was not a reasonable attempt to comply with the Internal Revenue code or
relevant common law. The Court agrees.”). “[I]t is not enough for a form to contain
some income information; there must also be an honest and reasonable intent to
supply the information required by the tax code. . . . In our self-reporting tax system
the government should not be forced to accept as a return a document which plainly
is not intended to give the required information.” United States v Mosel, 738 F.2d 157,
158 (6th Cir. 1984) (quoting United States v Moore, 627 F.2d 830, 835 (7th Cir. 1980)).
As noted above, Brown asserted on his 2023 tax return that he received only
$5 in wages, but he actually received $126,532.89. (See Dkt. No. 32-1 Ex. A, Ex. B.)
Brown’s return cannot constitute a reasonable or honest attempt to supply the
information required by the tax code. See Mosel, 783 F.2d at 158. As such, Brown’s
2023 tax return was not a properly executed return and does not constitute a claim
for refund. Accordingly, the Court lacks subject matter jurisdiction. See 26 C.F. R.
§ 301.6402-3(a)(5). Absent a valid refund claim, the Court has no jurisdiction to hear
Brown’s tax-refund action, so Brown’s failure to satisfy the statutory prerequisites for
bringing a tax refund action in district court requires that this case be dismissed. See
Reinhart, 2003 WL 1950335, at *3.
Brown’s reply brief (Dkt. No. 33) does not alter this conclusion. While Brown
divides his argument section into five subheadings, his arguments essentially rely on
two basic contentions: (1) his return satisfies the statutory requirements for filing a
valid tax return, and (2) that the IRS treated his return as valid. (See id.) As to the
first contention, Brown asserts that his Form 1040 included the information
necessary to satisfy “All Beard Requirements,” but he fails to cite any legal authority
in support of this assertion. (See id. at ECF p. 2.) To the extent that Brown is
referring to Beard v. Commissioner, 82 T.C. 766, 1984 (1984), aff'd, 793 F.2d 139 (6th
Cir. 1986), the four-part test articulated in that case requires that a valid return must:
(1) contain sufficient data to calculate the taxpayer’s tax liability; (2) purport to be a
return; (3) represent an honest and reasonable attempt to satisfy the requirements of
the tax law; and (4) be executed under penalties of perjury. Id. at 777.
Despite Brown’s conclusory contention that his 2023 Form 1040 meets these
requirements, Brown provides no further analysis and does not explain how his
Form 1040 satisfies any of these elements. Most notably, Brown provides no
explanation for how his unreported income of $126,532.89 for the 2023 tax year
could possibly meet the requirements of providing sufficient data to calculate his tax
liability or constitute an honest and reasonable attempt to satisfy the requirements of
the tax law. (See Dkt. No. 33; but see Dkt. No. 32-1.) Contrary to his claim that
incorrect income does not render a tax return invalid (See Dkt. 32 at ECF p. 3), the
discrepancy between the $5 Brown reported as income and the $126,532.89 reflected
on his form W-2 cannot be dismissed as a minor computing error or good-faith
mistake; it may be a deliberate underreporting of income that renders his Form 1040
deficient under Beard. See, e.g., Reinhart, 2004 WL 1950335; Ya Glob. Invs. v. Comm’r,
161 T.C. 173 (2023) (rejecting a return reporting all zeros as failing to constitute an
honest and reasonable attempt to satisfy tax law requirements).
As to the second contention, Brown asserts that the IRS’s communication
with him and acceptance of his subsequent year’s refund proves the filing method
was “valid and compliant.” (Dkt. No. 33 ¶ II(B)-(C).) Nothing supports that
assertion. Additionally, Brown simply states “Plaintiff satisfied § 7422(a).” Bare
assertions, unsupported by citation to legal authority or any plausible explanation,
are insufficient to carry Brown’s burden to establish jurisdiction. None of Brown’s
arguments, individually or collectively, overcome the fundamental defect: he did not
file a proper and timely refund. Because Brown has failed to demonstrate that he
satisfied the statutory perquisites for bringing a tax refund action, this Court lacks
subject matter jurisdiction, and this case must be dismissed.
IV. LEAVE TO AMEND
The Fifth Circuit instructs courts to give pro se plaintiffs an opportunity to
state a claim upon which relief can be granted. See Scott v. Byrnes, No. 3:07-CV-1975-
D, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester, No. 3:00-CV-
0863-D, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001). District courts therefore
typically allow pro se plaintiffs an opportunity to amend their complaints when the
action is to be dismissed pursuant to a court order. See Robinette v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. Tex.
Apr. 12, 2004); Sims, 2001 WL 627600, at *2.
The Court may deny leave to amend only when there is substantial reason to
do so. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981). Factors to
consider when deciding whether to grant leave to amend include “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failures to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, and futility of the amendment.” Id.
at 598. Granting leave to amend is futile when the amended complaint would fail to
state a claim upon which relief could be granted. See, e.g., Stripling v. Jordan Prod. Co.,
234 F.3d 863, 873 (5th Cir. 2000); In re Am. Airlines, Inc., Priv. Litig., 370 F. Supp. 2d
552, 567-68 (N.D. Tex. 2005) (“[D]istrict courts often afford plaintiffs at least one
opportunity to cure pleading deficiencies before dismissing a case, unless it is clear
that the defects are incurable or . . . [plaintiffs] are unwilling or unable to amend in a
manner that will avoid dismissal.” (internal citations omitted)).
The Court, however, need not grant leave to amend “‘if the plaintiff has
already pleaded his best case.’” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009).
Here, Brown has been given opportunities to plead his best case—his complaint
(Dkt. No. 3), his response to the show cause order (Dkt. No. 29), and his reply to the
Government’s response (Dkt. No. 33)—and it is clear that no amendment to Brown’s
complaint can remedy the lack of jurisdiction. That is so because the deficiency lies
not in the pleading itself, but in Brown’s failure to satisfy the statutory prerequisites
for bringing a refund suit. Because these deficiencies cannot be cured by amending
his complaint, allowing Brown to amend would be futile. See Reliance Ins. Co. v. La.
Land & Expl. Co., 110 F.3d 253, 258 (Sth Cir. 1997) (“[JJudges have the power to
control their dockets by refusing to give ineffective litigants a second chance to
develop their case.” (citing Turnage v. Gen. Elec. Co., 953 F.2d 206, 208-09 (5th Cir.
1992)).
V. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS that the Court
dismiss this lawsuit without prejudice for lack of subject-matter jurisdiction.
SO RECOMMENDED on April 3, 2026.
On
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
12
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).