Payne v. United States

In the United States Court of Federal Claims

No. 17-1661T

Filed: August 27, 2018 F l L E D

AUG 2 7 2018

U.S. COURT OF

*>i¢=i=*=!=*=i<>i¢¢i=***>i¢>i=*=!=$=!¢*

EDWARD HAYWOOD PA‘(NE, JR., : FEDERAL CLAiMS

P|aintiff, * m § P|aintiff; illlotion to

v * Dismiss; Subject Matter

' * Jurisdiction; Tort C|aim;

UN|TED STATES, * Fraud C|aim; Tax Refund

* C|aim.

Defendant. =l=

sic

=l=

>l==i=*=!=*=i=*=i=*$***$=l=****

Edward Hayvvood Payne, Jr., Philadelphia, PA, LY.

Katherine R. Powers, Tria| ,L’lttorneyl Court of Federal C|aims Section, Tax Division,

United States Department of Justice, Washington, DC for defendant With her Were David

l. Pincus, Chief, Court of Federal C|aims Section, Tax Divisionl and Richard E.

Zuckerman, Principal Deputy Assistant Attorney Genera|.

OPlNlON

HORNl J.

FlND|NGS OF FACT

On October 27, 2017, M se plaintiff Edward Haywood Payne, Jr. filed a complaint

in the above-captioned case in Which plaintiff makes a vague claim concerning alleged

negligence by the internal Revenue Service (lRS) regarding an amended tax return,

allegedly filed in plaintiffs name and Without plaintiffs authorization Plaintiff’s complaint

states “[t]he grounds for my claim is negligence on [sic] part of the internal Revenue

Service (lRS). The l.R.S [sic] processed not only a fraudulent claim in my name, but

processed and paid a return to an unauthorized person. The amended return had no

signaturel let alone not even my signature." P|aintiff’s complaint also states:

The lnternal Revenue Service failed to protect my tax account, an inherent

right as a Citizen of the United States of America, and a Tax Payer of the

same. This failure resulted in my seeking of legal counsel causing me to

lose - $3,200.00, and suffering damages of at least $6,400.00.

(capitalization in original). Plaintiff also vaguely claims in his complaint that an attorney

named David Rulcin misled plaintiff With regard to an undefined “agreement." Plaintiff’s

complaint statesl “[t]he grounds for my claim against attorney David Rubin is that he

intentionaly [sic] misled me into signing an agreement and subsequently being liable to

pay his $3,200.00 fee by way of personal check. (USAA)." Plaintiff’s complaint aiso is

unclear regarding the amount of damages plaintiff is seeking Plaintiff alleges that the

iRS’s failure to protect plaintiffs tax account “resulted in my seeking of legal counsel

causing me to lose ~ $3,200.00, and suffering damages of at least $6,400.00.” Plaintiff

then requests under a separate section of his complaint titled “REL!EF" that the court

award plaintiff a “totai of $5,700.00,” Which plaintiff separates into “Attorneys Fees,

$3,200.00,” and “Ta)< Return $2,500.00.” (capitalization in original).

Attached to the complaint is a letter dated June 20, 2017 from the tRS to plaintiff

regarding plaintiffs “income Tax Liability” for the tax period ending on “12/2013.”

According to the June 20, 2017 IRS letter, the lRS Appeals Office in Phiiadelphia had

completed a review of plaintiffs “c|aim for abatement and/or refund of taxes.” The IRS

appears to have denied plaintiffs “ciaim” and noted in the June 20, 2017 letter that “[s]ince

no information was provided to support your ciaim, there is no basis to allow any part of

your claim.” Copied on the June 20, 2017 fetter Was “David N Rubin.” ln his complaint,

plaintiff does not provide additional details about the June 20, 2017 letter.

On January 30, 2018, defendant, United States, filed a motion for a more definite

statement pursuant to Rule 12(e) (2018) of the Rules of the United States Court of Federal

Ctaims (RCFC), requesting that the court order piaintiff to amend the complaint and

“provide more information about the nature of Piaintiffs suit." Specifica!ly, defendant’s

motion noted that the compiaint “omits the tax year in which Plaintiff alleges an

unauthorized person filed an amended return in Plaintiff’s name," and that “[p]laintiff has

not satisfied Rule 9(m) which requires, among other things, that the complainant identify

the tax year for which the refund is sought and provide a copy of the ciaim for refund to

the Court.” Defendant alleged that the deficiencies in plaintiffs complaint prevented

defendant from understanding plaintiffs claim, “including whether this Court has subject-

matterjurisdiction and whether Plaintiff intends to bring a claim for a tax refund and/or a

claim pursuant to 31 U.S.C. § 3343 (providing recovery for a lost or stolen check).”

(citation omitted).

On February 28, 2018, this court granted defendant’s motion for a more definite

statement, noting that plaintiffs complaint was vague and ambiguous and prevented

meaningful review. The court stated in its February 28, 2018 Order that "plaintiff shall

identify the time period in which plaintiff alleges ‘[t]he lRS processed not oniy a fraudulent

ciaim in my name, but processed and paid a return to an unauthorized person.’” The court

also stated that “if plaintiff is seeking a tax refund in the above-captioned case, plaintiffs

claim for a tax refund shall comply with RCFC 9(m)." Additionally, the court’s February

28, 2018 Order stated that plaintiff “shall specificaily indicate [in the amended complaint]

who is ‘attorney David Rubin’ and the role he played" in plaintiffs tax matters

in accordance with the February 28, 2018 Order for a more definite statement,

plaintiff filed a one and a half page, still vague, amended complaint on i\!larch 12, 2018.

The first paragraph of the amended complaint, regarding plaintiffs interactions with

attorney David Rubin, states:

On or about August 24, 2016 the plaintiff (Edward H. Payne Jr.) contacted

thr. Rubin via phone to discuss fraud on the personal tax account of the

plaintiff. As a result, a meeting was set up with lVlr. Rubin and the plaintiff

During the meeting lVlr. Rubin assured the plaintiff that the 2014 tax return,

which was filed about February 16, 2015, would be recovered of $2,509.00,

as well as damages from both parties responsible for the fraud $3,200.00

each, totaling $6,400.00. After being assured these conditions the plaintiff

signed an agreement with |Vfr. Rubin and wrote him a personal check for

$3,200.00, on the spot in his office iocated at 1500 JFK Boulevard Ste1900,

Philadelphia, PA. 19102. The purpose of this agreement was for attorney

David Rubin of Rubin & Rubin Tax Attorneys to provide full legal

representation of the plaintiff

(capitalization in originai). The second paragraph of plaintiffs amended complaint,

regarding a 2011 amended tax return, states:

The actual fraud occurred on the piaintiff’s 2011 . . . tax returnl where the

2011 tax return was amended by an unauthorized party and a dependent

child was added The original 2011 tax return was signed and authorized by

the plaintiff and was filed about i\/iarch 10, 2012, the 2011 amended return

was not signed or authorized by the plaintiff At these times 2011 and 2014

. . . the legal address ofthe plaintiff was 214 North 52nd Street Phi|adelphia,

PA. 19139. The tax iD # of the plaintiff is . . . and the refunds for 2011 and

2014 were fiied in Philadelphia, PA., however the frauduient return was file

[sic] iri New York, within the city limits of l\/lount Vernon the plaintiff believes

The fraudulent tax return listed an address of 214 North 42mcf Street

Philadelphia, PA., an addressed [sic] never used by the plaintiff nor never

reflected on the piaintiffs drivers [sic] license. A report was aiso filed with

the Philadeiphia Police 19th District iocated at 6059 Haverford Avenue

19151.

Aiong with his amended complaint, plaintiff included two copies of a letter dated

December 27, 2016 from the lRS to plaintiff The December 27, 2016 letter states in

relevant part:

Dear Taxpayer:

VVE COULDN’T AF_LOW YOUR CLA|iV|

VVe disallowed your claim for credit for the period iisted at the top of this

letter [Tax Period: Dec. 31, 2011].

VVHY WE CAN’T Ai_l_OVV YOUR CLAli\/i

V\ie have reviewed your claim of identity theft (ldentify Theft Affidavit or

police report) and supporting documentation and have determined that you

are not a victim of identity theft. it appears you or your representative filed

the submitted return and did not include ali of your income.

(capitaiization in original). The December 27, 2016 letter also contained information

informing the plaintiff as to how to appeal the lRS’s decision. P|aintiff’s amended

complaint does not discuss the attached December 27, 2016 letter.

On April 26, 2018, defendant filed a “Partial lVlotion to Dismiss for Lack of Subject-

lVlatter Jurisdiction” pursuant to RCFC 12(b)(1). Aithough the complaint and amended

complaint are unciear as to the claims plaintiff is actually asserting even in his amended

complaint, defendant’s partial motion to dismiss extrapolated plaintiffs complaint into four

separate claims According to defendant’s interpretation of piaintiff’s pleadings, plaintiff

had asserted four causes of action1

(1) [A] claim seeking damages against the lRS based in negligence; (2)

a claim against the individual attorney David Rubin relating to his

services; (3) a claim for a refund of taxes for the tax year ending in 2011,

due to fraud; and (4) though somewhat unclear, a claim for a refund of

taxes for the tax year ending in 2014.

Defendant argued that this court lacked subject matter jurisdiction over “Plaintiffs claim

seeking damages against the lRS for negligence and his ciaim against attorney David

Rubin,” and defendant requested that the court grant defendant’s partial motion to dismiss

as to these two claims for lack of subject matter jurisdiction.

Defendantfiled its current and updated partial motion to dismiss on June 28, 2016,1

asserting that it is now seeking to dismiss three of plaintiffs four claims |n the June 28,

2018 partial motion to dismiss, defendant indicates that plaintiff had made four separate

claims, as follows:

C|aim One - a “Claim for Negligence Against the iRS"

C|aim Two ~ a “Claim for Damages Against David Rubin”

C|aim Three - an “lnsufficiently Described C|aim Relating to Tax Year 2014”

Ciaim Four - a “Tax Refund for the ¥ear 2011”

(capitalization in original). Defendant moves to dismiss claims one and two for lack of

subject matter jurisdiction and claim three for failure to state a claim. in its motion,

however, defendant does not move to dismiss the fourth claim reiating to the 2011 tax

refund Defendant states that it “will move for summary judgment” on plaintiffs 2011 tax

refund claim in light of “additional material from the lRS regarding the denial of plaintiffs

1 Defendant filed an updated partial motion to dismiss after the court ordered defendant

to refile the motion to specify the tax years at issue in defendant’s motion.

4

claim for identity theft” that defendant has received since filing its original motion to

dismiss on April 26, 2018.

Subsequently, on August10,2018, plaintiff submitted to the court a document titled

“PLAINTIFFS MOT|ON FOR FULL JUDGEl\/lEN'l'.” (capitalization in original). Although

plaintiff titled his August 10, 2018 filing a “motion for full judgment,” the August 10, 2018

filing appears to be plaintiffs albeit untimely filed, response to defendant’s June 28, 2018

partial motion to dismiss On August 13, 2018, the court ordered plaintiffs filing to be filed

on the docket in the above-captioned case. ln plaintiffs August 10, 2018 filing, plaintiff

vaguely, alleges, without further explanation, that defendant “admitted to liability at least

from the perspectives that the Defendants claims for the tax returns were legitimate," and

asserts that defendant claimed “the responsibility to pay the claims for 2011 & 2014.”

Plaintiff also asserts that an “affidavit prepared by my former attorney David Rubin to my

knowledge contains all the correct dates and other pertinent information, because the

document Was accepted by this court." Plaintiff, howeverl never provides the court With

an affidavit from lVlr. Rubin or such an affidavit Plaintiff then states for the first time in his

August 10, 2018 filing that he is seeking “refunds” for the 2011 and 2014 years Plaintiff

states that:

As for the 2014 amended tax return being mistakenly identified as 2011 ,

This issue was addressed in the Plaintiffs amended complaint, David

Rubin’s affidavit and my personal tax file Which the court can subpoena As

for reference to the brief if this court reviews the phone logs, it Will be found

that and l.R.S. represented [sic] even told me,” [sic] lt is my identity in this

matter, therefore it is my money”. Due to fraudulent activity on my tax

account, both years 2011 and 2014 were adversely affected therefore

ciaims resuiting in refunds for both years shouid be allowed on behalf cf the

Plaintiff

Plaintiff, however, does not provide any additional information in his August 10, 2018 filing

regarding his unspecified 2011 and 2014 refund claims Plaintiff also alleges for the first

time in his August 10, 2018 filing that:

in this case a Treasury check was not merely stolen, my identity was as

supported by a Philadelphia Police Report. The Police Report states that

the address used was not mine, how could a check have been mailed to me

at my horne of record at the time concerning this claim?

Nor does plaintiff provide any additional information in his August10, 2018 filing regarding

a stolen check or stolen identity claim. Plaintiffs August 10, 2018 filing concludes:

VVHEREFORE, based on all the evidence and reasons set forth above,

Plaintiff request [sic] that the court grant Plaintiffs motion to be awarded ail

the funds in which the law will allow. (1) C|aim for negligence against the

l.R.S. C|aim for reimbursement of attorney’s fees paid to David Rubin; and

the claims pertaining to the tax years 2011 and 2014.

DlSCUSS|ON

The court recognizes that plaintiff is proceeding p_rg Y. When determining Whether

a complaint filed by gr_g §§ plaintiffs is sufficient to invoke review by a court, pg §§

plaintiffs are entitled to a more liberal construction of their pleadings w l-iaines v_

Kerner, 404 U.S. 519, 520-21 (1972) (requiring that allegations contained in a B §§

complaint be held to “less stringent standards than formal pleadings drafted by lawyers”),

@t_i:g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);

i-lughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976),

re_h’g deniedl 429 U.S. 1066 (1977); l\/latthews v. United States, 750 F.3d 1320, 1322

(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), M, 603 F.

App’x 947 (Fed. Cir.), gert_. denied1 135 S. Ct. 1909 (2015). l-iowever, “there is no ‘duty

[on the part] of the trial court . . _ to create a claim which [plaintiff] has not spelled out in

his [or her] pleading . , , Lenden v. United States, 100 Fed. Cl. 317, 328 (2011)

(alterations in originai) (quoting Scodin v. United States, 33 Fed. Cl. 285, 293 (1995)

(quoting Clark v. Nat’l Traveiers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); §

also Bussie v. United States, 96 Fed. Cl. 89, 94, a_f_f;d_, 443 F_ App’x 542 (Fed. Cir. 2011);

lVlinehan v. United States, 75 Fed. Cl. 249, 253 (2007). “While a ng§e_ plaintiff is held to

a less stringent standard than that of a plaintiff represented by an attorney, the B Y

plaintiff nevertheless bears the burden of establishing the Court’s jurisdiction by a

preponderance of the evidence." Ri|es v. United States, 93 Fed. Cl. 163l 165 (2010) (citing

Hughes v. Rowe, 449 U.S. at 9; and Tavlor v. United States, 303 F.3d 1357, 1359 (Fed.

Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the

evidence."), reh’q and reh’q gr_i banc denied (Fed. Cir. 2002)); see aiso Golden v. United

States, 129 Fed. Cl. 630, 637 (2016); Shelkofskv v_ United States, 119 Fed. Cl. 133, 139

(2014) (“[W]hile the court may excuse ambiguities in a prg §§ plaintiffs complaint, the

court 'does not excuse [a complaint’s] failures.’" (quoting l-lenke v. United States, 60 F.3d

795, 799 (Fed. Cir. 1995))} Harris v. United States, 113 Fed. Cl. 290, 292 (2013)

(“Although plaintiffs pleadings are held to a less stringent standard, such leniency ‘with

respect to mere formalities does not relieve the burden to meet jurisdictional

reguirements.’" (quoting lVlinehan v. United States, 75 Fed. Cl. at 253)).

Additionaily, although “[a]n amended compiaint supersedes any previous

complaints," Tender Years Learninq Corp. v. United States, 128 Fed. Cl. 265, 272 (2016)

(citing Jet. lnc. v. Sewaqe Aeration Svs., 223 F.3d 1360, 1364~65 (Fed Cir. 2000)), the

court may liberally construe a pg § plaintiffs pleadings “‘to see if [a m Y] plaintiff has

a cause of action somewhere displayed.’” l_ong v. United States, 113 Fed. Cl. 7, 11 (2013)

(alteration in original) (quoting Ruderer v. United States, 188 Ct. Cl. 456, 468, 412 F.2d

1285, 1292 (1969)). This court and other federal courts have construed the amended

pleadings of a grg _s__e litigant as supplemental when the statements in the amended

document provide additional support to statements in the original pleading § Ayres v.

United Statesl 66 Fed. Cl. 551, 556 n.5 (2005) (permitting plaintiffs “Amendment to

Compiaint” to supplement, rather than supersede, the original complaint because the

“Amendment to Complaint” sought only to supptement plaintiffs prayer for relief), recons.

denied i_n jim 67 Fed. Cl. 776 (2005); see also Johnson v. interstate lqumt. Co., 962 F.

Supp. 2d 244, 250 (D.D.C. 2013) (“VVhile an amended complaint generally supersedes

the original, the court, mindful of Plaintiffs _B Y status, Will instead consider his

pleadings coilectively.”).2

Based on the record before this court, plaintiff filed his original complaint on

October 27, 2017 and his amended complaint on lVlarch 12l 2018. Plaintiffs lVlarch 12,

2018 amended complaint provides limited additional, albeit vague, information regarding

his asserted claims against the lRS and lVlr. Rubin. Because of plaintiffs p_r_o_ §§ status,

the court considers both complaints Even taken together, however, as discussed below,

there is insufficient description of plaintiffs claims for this court to take jurisdiction of

plaintiffs complaint

As previously noted, defendant has moved to dismiss two of the four claims

allegedly brought by plaintiff plaintiffs claim of negligence against the IRS and plaintiffs

claim against David Rubin, for lack of subject matter jurisdiction Defendant has moved

to dismiss for failure to state a claim plaintiffs possible refund claim regarding the 2014

tax year, but has not moved to dismiss plaintiffs possible refund claim regarding the 2011

tax year_ Regarding the negligence ctaim against the lRS and the claim against attorney

Rubin, “[s]ubject~matter jurisdiction may be challenged at any time by the parties or by

the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004)

(citing Fanninq, Phillips & l\/iolnar v. V\lest, 160 F.3d 717, 720 (Fed. Cir. 1998)); § M

lnt’l Elec. Tech. Corp. v. i-luqhes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The

Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this court as follows:

The United States Court of Federal C|aims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the

Tucker Act waives sovereign immunity to allowjurisdiction over claims against the United

States (1) founded on an express or implied contract with the United States, (2) seeking

a refund from a prior payment made to the government, or (3) based on federal

constitutional, statutory, or regulatory law mandating compensation by the federal

government for damages sustained See United States v. Navaio Nation, 556 U.S. 287,

289»90 (2009); see also United States v. l\/litchell, 463 U.S. 206, 216 (1983); Alvarado

Hosj:_)., LLC v. Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cntv., Ariz. v. United

States, 487 F.3d 871, 875 (Fed. Cir.), reh’q and reh’q en banc denied (Fed. Cir. 2007),

2 ln an unpublished opinion, the United States Court of Appeals for the Federal Circuit

acknowledged that an amended comptaint of a pig ge litigant may supplement the p_r_g _s__e_,-

litigant’s original complaint, See Younq v. United States, 497 F. App’x 53, 57 n.4 (Fed.

Cir. 2012) ("VVhile an amended complaint normally is deemed to supersede any

previously filed complaint, we liberally construe [plaintiff’s] gr_g sme_ pleadings and assume

for purposes of this opinion that he intended to supplement the original Complaint When

an Amended compiaint was filed . . . .”).

ge_rt. denied, 552 U_S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.

Cir. 1999). “Not every claim invoking the Constitution, a federal statute, or a regulation is

cognizable under the Tucker Act. The claim must be one for money damages against the

United States . . . United States v. lVlitchell, 463 U.S. at 216; see also United States v.

VVhite Nlountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbvterian Hosp. v.

United States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114,

1116 (Fed. Cir.), M denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States,

566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s lVlushroom Serv., inc. v. United States. 521

F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law

that creates the right to recovery of money damages against the United States."); Golden

v. United States, 118 Fed. Cl. 764, 768 (2014). ln Ontario Power Greneration1 lnc. v.

United States1 the United States Court of Appeals for the Federal Circuit identified three

types of monetary claims for Which jurisdiction is lodged in the United States Court of

Federal C|aims The court wrote:

The underlying monetary claims are of three types . . . First, claims alteging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver

encompasses ciaims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. iCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

[1002,] 1007~08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket’" (quoting

Clapp v. United States, 127 Ct. Cl_ 505, 117 F. Supp. 576, 580 (1954)) . . . .

Third, the Court of Federal C|aims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury.” Eastgort S.S., 372 F.2d at 1007.

C|aims in this third category, where no payment has been made to the

government, either directly or in effect, require that the “particular provision

of law relied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum.” ld__; see also [United States v_ l'l'estan, 424 U.S.

[392,] 401-02 [1976] (“V\lhere the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulation-

does not create a cause of action for money damages unless, as the Court

of C|aims has stated, that basis ‘in itself . . . can fairly be interpreted as

mandating compensation by the Federal Government for the damage

sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is

commonly referred to as claims brought under a "money-mandating”

statute.

Ont. Power Generation1 inc_ v. United States1 369 F.3d 1298, 1301 (Fed. Cir. 2004); §

also Samish indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); `i'wp.

of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating a plaintiff must

demonstrate that an independent source of substantive law relied upon “‘can fairly be

interpreted as mandating compensation by the Federal Government.”' United States v_

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400

(1976)); see also United States v. White lVlountain Apache Tribe, 537 U.S. at 472; United

States v. l\/litchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,

1383 (Fed. Cir. 2008), M denied, 555 U.S. 1153 (2009). The source of law granting

monetary relief must be distinct from the Tucker Act itself See United States v. Navaio

l\|ationl 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply

a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims

premised on other sources of iaw (e.g., statutes or contracts).”). “‘lf the statute is not

money~mandating, the Court of Federal C|aims lacks jurisdiction, and the dismissal

should be for lack of subject matter jurisdiction.’” Jan's Helicopter Serv., lnc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greeniee Cntv., Ariz. v.

United States, 487 F.3d at 876); see also N.Y. & Presbvterian i~losb., 881 F.3d at 881;

Fisherv. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence ofa money-

mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Price v.

United States, 133 Fed. Cl. 128l 130 (2017); Peoples v. United States, 87 Fed. Cl. 553,

565-66 (2009).

V\lhen deciding a case based on a tack of subject matterjurisdiction or for failure

to state a claim, this court must assume that all undisputed facts aileged in the complaint

are true and must draw all reasonable inferences in the non-movant’s favor. §§ Erickson

v, Pardus, 551 U.S. at 94 (“[VV]hen ruling on a defendant’s motion to dismiss a judge

must accept as true all of the factual allegations contained in the complaint.” (citing M

Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,

534 U.S. 506l 508 n.1 (2002)))); see also Frani<el v. United States 842 F.3d 1246, 1249

(Fed. Cir. 2016) (“ln deciding a motion to dismiss a court is required to accept as true all

factual allegations pleaded.” (citing Ashcroft v. igbal, 556 U.S. 662, 678 (2009))); Fid. &

Guar. ins Undenivriters, lnc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015);

Trusted integration, lnc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

“Determination ofjurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiffs claim, independent of any

defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), Mg

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011); Gonzalez~l\/lcCauilev lnv. Grp., lnc. v. United States, 93 Fed. Cl. 710,

713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the

grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing

that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)

(2018); see also Ashcroft v. iqbal, 556 U.S. at 677~78 (citing Bell Atl. Corp. v. Twomblv,

550 U.S. at 555~57, 570). To properly state a claim for relief, “[c]onclusory allegations of

law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.

Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also lVcheai v. Sprint Nextel

Corp.1 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in

part) (quoting C. WRiGHT AND A. iViiLLER, FEDERAL PRAcTicE ANo PRocEDuRE § 1286 (3d

ed 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations

unsupported by any factual assertions will not withstand a motion to dismiss”), M, 460

U.S. 325 (1983). “A plaintiffs factual ailegations must ‘raise a right to relief above the

speculative |evel’ and cross ‘the line from conceivable to piausibie."’ Three S Consulting

v. United States, 104 Fed. Ci. 510, 523 (2012) (quoting Bell At|. Corp. v. Twomb|v, 550

U.S. at 555), M, 562 F. App’x 964 (Fed. Cir.), @h’g denied (Fed. Cir. 2014). /-\s stated

in Ashcroft v. lgbal, “[a] pieading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘furtherfactual enhancement.”’

Ashcroft v. lgbai, 556 U.S. at 678 (quoting Be|l Atl. Corp. v. Twomblv, 550 U.S. at 555),

l. Plaintiff’s claim regarding the |RS’s alleged negligence.

Plaintiff claims in the above-captioned case that there was “negligence on [sic] part

of the internal Revenue Service (lRS)" because the iRS, allegedly, “processed and paid”

a “fraudulent claim” filed in plaintiffs name "to an unauthorized person.” Defendant argues

that the claim of “aileged negligence of the lRS for failure to protect plaintiffs ‘tax

account,’” is based in tortious acts and “falis outside this court’s jurisdiction." Due to this

court’s limited jurisdiction under the Tucker Act, this court does not have jurisdiction to

hear tort claims against the United States W28 U.S.C. § 1491 (a)(1) (“The United States

Court of Federal Claims shall have jurisdiction . . . in cases not sounding in tort.”); W

also Keene Corp. v. United States 508 U.S. 200, 214 (1993) (“[Tjort cases are outside

the jurisdiction of the Court of Federal C|aims today.”); Brown v. United States, 105 F.3d

621, 623 (Fed. Cir.) (“The Court of Federal C|aims is a court of limited jurisdiction lt lacks

jurisdiction over tort actions against the United States.”), Mg denied (Fed. Cir. 1997);

Bobka v. United Statesl 133 Fed. Cl. 4051 412 (2017) (“[Plaintiff] also alleges that the

government engaged in tortious conduct, e.g., fraudl negligencel and defamation. . . .

This court, however, does not have jurisdiction over allegations based in tort.” (internal

reference omitted; emphasis in original) (citing Ricl<’s lV|ushroom Serv. v. United States,

521 F.3d at 1343)); Khalil v. United States, 133 Fed. Ct. 390, 392 (2017); i_effebre v.

United States, 129 Fed. Cl. 48, 53 (2016); Kant v. United States, 123 Fed. Cl. 614, 616

(2015). lt is well-established that claims alleging negligence against a government agency

are tort claims See Rick’s l\/lushroom Serv. lnc. v. United States, 521 F.3d at 1343

(holding that “[a] ciaim for professional negligence is a tort claim” and thus lies outside

the United States Court of Federal C|aims’ jurisdiction under the Tucker Act (citing

GlobalNet Financial.Com, lnc., v. Frank Crvstal & Co., 449 F.3d 377, 385 (2d Cir. 2006);

Gi_F Const. Corp. v. LAN/STV, 414 F.3d 553, 555 (5th Cir. 2005); Piazza v. Ebsco lndus.,

273 F.3d 1341l 1348 (11th Cir. 2001); White v. Napoleon, 897 F.2d 103, 114 n.4 (3d Cir.

1990))); see also Rothinq v. United States, 132 Fed. Cl. 387l 390 (2017) (dismissing

plaintiffs claim under the Federal Tort C|aims Act because "jurisdiction lover tort claims]

lies exclusively with the United States district courts” (citing Sounders v. S.C. Pub. Serv.

Auth., 497 F.3d 1303, 1307 n.5 (Fed. Cir. 2007))). ln particular, this court has held that

assertions of negligence by lRS officials are properly classified as tort claims §

'i'opsnik v. United States, 120 Fed. Ct. 282, 286-87 (2015) (holding that plaintiffs “factual

allegations of improper conduct by lRS officials based on their allegedly intentional or

10

l(¢

negligent actions” gives rise to an action which sound in tort’ and [is] therefore not within

this Court’s jurisdiction underthe Tucker Act" (quoting 28 U.S‘C. § 1491(a)(1))). Because

plaintiff is asserting a claim based on “negligence on [sic] part of the lnternal Revenue

Service," plaintiffs claim of negligence against the lRS sounds in tort and must be

dismissed for lack of subject matterjurisdiction. See Brown v. United States, 105 F.3d at

623; see also Topsnik v. United States, 120 Fed. Cl. at 287.

il. Plaintiff’s claim regarding David Rubin.

Plaintiff also makes a claim against attorney David Rubin, stating that lVlr. Rubin

“intentionaly [sic] misled" plaintiff into signing “an agreement and subsequently being

liable to pay his $3,200.00 fee by way of personal check.” Defendant argues that this

claim also should be dismissed under RCFC 12(b)(1) because it is a claim against an

individual and this court does not have jurisdiction over suits against individuals

According to defendant, this court is only a forum for claims against the United States

Defendant further argues that “plaintiff lacks standing to bring a claim based on David

Rubin’s alleged misrepresentations or conduct because any injury resulting from such

was nct, in fact1 caused by defendant, the United States.” ln addition, defendant also

argues that because plaintiff appears to have alleged a claim against David Rubin for

“[m]ispresentation,” Which defendant states is a tort, this court, likewise, does not have

subject matter jurisdiction over plaintiffs tort claim.

lt is well established that this court lacks jurisdiction to hear claims against

individuais. See United States v. Sherwood, 312 U.S. 584, 588 (1941) (noting that “if the

relief sought is against others than the United States the suit as to them must be ignored

as beyond the jurisdiction of the court [United States Court of Ciaims]" (citing United

States v. Jones 131 U.S. 1, 9 (1889); Lynn v. United States, 110 F.2d 586, 588 (5th Cir.

1940); Leather & l_eidh v. United States, 61 Ct. Cl. 388 (1925))); see also Brown v. United

States, 105 F.3d at 624 (“The Tucker Act grants the Court of Federal Ciaims jurisdiction

over suits against the United States, not against individual federal officials."); Cooper v.

United Statesl 137 Fed. Cl. 432, 434 (2018) (finding that the United States Court of

Federal C|aims “lacks subject matterjurisdiction to consider plaintiffs claims to the extent

they are made against individua|s"); Robinson v. United States, 127 Fed. Cl. 417, 420

(2016) (“The court is Without jurisdiction over claims against individuals.”’ (quoting

Emerson v. United States, 123 Fed. Cl. 126, 129 (2015))); l\/lerriman v. United States,

128 Fed. Cl. 599, 602 (2016) (“The United States Court of Federal C|aims does not have

subject matter jurisdiction over claims against private individuals or state officials." (citing

United States v. Shervvood, 312 U.S. at 588)); i-licks v. United States, 118 Fed. Cl. 76, 81

(2014); Cottrell v. United States, 42 Fed. Cl. 144, 148 (1998).3 Based on plaintiffs

3 Although in unpublished opinions the United States Court of Appeais for the Federai

Circuit has continued to hold that under the TuckerAct, the United States Court of Federai

Ciaims does not have jurisdiction over individuals as defendants §_e_e Conner v. United

States, 641 F. App’x 972, 975 (Fed. Cir. 2016) (“U nder the Tucker Act, ‘if the relief sought

is against others than the United States the suit as to them must be ignored as beyond

the jurisdiction of the [Court of Federal Claims].’” (quoting United States v. Sherwood, 312

11

complaint and amended complaint, it appears that plaintiff is suing lVlr. Rubin as an

individual, Plaintiff, as previously noted, states in his complaint that his claim is “against

attorney David Rubin," who allegedly “misled” plaintiff into signing an agreement, under

which lVlr. Rubin was “to provide full legal representation" to plaintiff regarding a fraudulent

tax return. Because plaintiff seeks relief against l\/lr. Rubin as an individual, such claim

lies beyond the jurisdiction of this court and must be dismissed

Plaintiff also states in his complaint that “[lVlr. Rubinj intentionaly jsic] misled me

into signing an agreement and subsequently being liable to pay his $3,200.00 fee by way

of personal check.” Plaintiff, thus appears to be alleging that l\/lr. Rubin committed some

type of fraud or misrepresentation l\/lisrepresentation and fraud claims also sound in tort.

See Brown v. United States, 105 F.3d at 623 (holding that plaintiff-appellant’s claims for

“‘fraudulent assessment[s]’ are grounded upon fraud, which is a tort," and therefore

precludes jurisdiction over such claims by the United States Court of Federal Ciaims);

see also Hood v. United States, 127 Fed. Cl. 192, 212 (2016) (holding that plaintiffs

allegation of fraud is a tort claim excluded from this court’s jurisdiction under the Tucker

Act); Cooper v. United States, 137 Fed. Cl. at 434 (stating that the United States Court of

Federal C|aims does not havejurisdiction over plaintiffs misrepresentation claim because

such a claim is either a tort or a claim of criminal conduct); Jiron v. United States, 118

Fed. Cl. 190, 200 (2014); Salman v. United States, 69 Fed. Cl. 36, 38 (2005) (“[A]n action

for fraud lies in tort.”). As discussed above, this court lacks jurisdiction over tort claims

w 28 U.S.C. § 1491(a)(1).

To the extent that plaintiff may be asserting a criminal fraud claiml this court also

lacks subject matter jurisdiction to adjudicate that claim. The jurisdiction of the United

States Court of Federal C|aims does not include jurisdiction over criminal causes of

action See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); _s_e_e_a_l_s_o_ Cooper

v. United States, 104 Fed. Cl. 306, 312 (2012) (“[T]his court does not have jurisdiction

over [plaintiffs] claims because the court may review neither criminal matters nor the

decisions of district courts.” (internal citation omitted)); Nlendes v. United States, 88 Fed.

Cl. 759, 762, apj:_)eal dismissed 375 F. App’x 4 (Fed. Cir. 2009); Hufford v. United States,

87 Fed. Cl. 696, 702 (2009) (holding that the United States Court of Federal C|aims lacked

jurisdiction over claims arising from the violation of a criminal statute); Fullard v. United

States, 78 Fed. Cl. 294, 301 (2007) (“[leaintiff alleges criminal fraud, a subject matter

overwhich this court lacksjurisdiction" (citing 28 U.S.C. § 1491; Joshua v. United States,

17 F.3d at 379)); lV|CCullouqh v. United States, 76 Fed. Cl. 1, 4 (2006) (finding that the

United States Court of Federal C|aims lacked jurisdiction to consider plaintiffs criminal

claims), appeal dismissed1 236 F. App’x 615 (Fed. Cir.), Lh’g denied, (Fed. Cir.), ge_rL

denied, 552 U.S. 1050 (2007); lVlatthews v. United States, 72 Fed. Cl. 274, 282 (finding

that the court lacked jurisdiction to consider plaintiffs criminal claims), recons. denied, 73

Fed. Cl. 524 (2006). Further, the United States Court of Appeals for the Federal Circuit

recently wrote in an unpublished opinion that, “[t]he Court of Federal C|aims likewise lacks

jurisdiction to adjudicate claims brought under federal or state criminal statutes” Spitters

U.S. at 588)); see also lVlav v. United States, 534 F. App’x 930, 934 (Fed. Cir. 2013);

Powell v. United States, 151 F. App’x 938, 940 (2005).

12

v. United States 710 F. App’x 896, 897 (Fed. Cir. 2018) (citing Joshua v. United States,

17 F.3d at 379), Thus, because plaintiffs claims of misrepresentation or fraud against lVlr.

Rubin sound in tort or assert a criminal violation these claims also must be dismissed for

lack of subject matterjurisdiction. See Topsnik v. United States, 120 Fed. Cl. at 287.

lll. Plaintiff’s claim regarding the 2014 tax year.

Defendant extrapolated from plaintiffs complaint and amended complaint the

possibility that plaintiff is seeking a claim “Relating to the Tax Year 2014." Defendant,

however, argues that “[b]ased on what has been alleged in the pleadings whether plaintiff

intended to bring a tax refund for the year 2014 is wholly unclear.” Defendant then states

that plaintiff “failed to provide any basis as to why he would be entitled to a tax refund in

2014” and “failed to demonstrate that the requirements for bringing a tax refund suit in

this court have been satisfied.” For these reasons defendant argues that any claim

regarding the 2014 tax year should be dismissed for failure to state a claim pursuant to

RCFC 12(b)(6).

A motion to dismiss under RCFC 12(b)(6) for failure to state a claim upon which

relief can be granted “‘is appropriate when the facts asserted by the claimant do not under

the law entitle him [or her] to a remedy.”’ iVlurdock v. United States, 103 i-`ed. Cl. 389, 394

(2012) (alterations in original) (quoting Perez v. United States, 156 F.3d 1366, 1370 (Fed.

Cir. 1998)). in examining what must be pled in order to state a claim, under both RCFC

8(a)(2) and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only

state in the complaint “a short and plain statement of the claim showing that the pleader

is entitled to relief.” RCFC 8(a)(2); Fed. R. Civ. P. 8(a)(2); see also Bell Atl. Corp. v.

`fwombly, 550 U.S. at 555; TrinCo lnv. Co. v. United States, 722 F.3d 1375, 1380 (Fed.

Cir. 2013) (“To avoid dismissal under RFCF [RCFC] 12(b)(6), a party need only plead

‘facts to state a claim to relief that is plausible on its face,’ with facts sufficient to nudge

‘claims across the line from conceivable to plausible."’ (quoting Bell Atl. Corp. v. Twomblv,

550 U.S. at 555)). The United States Supreme Court in Twombly stated:

Whi|e a complaint attacked by a Rule 12(b)(6) motion to dismiss [for failure

to state a claim] does not need detailed factual allegations a plaintiffs

obligation to provide the “grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions and a formulaic recitation ofthe elements

of a cause of action will not do, §§ Papasan v. Allain, 478 U.S. 265, 286

(1986) (on a motion to dismiss courts “are not bound to accept as true a

legal conclusion couched as a factual allegation"). Factual allegations must

be enough to raise a right to relief above the speculative ievel, see 5 C.

Wright & A. lVliller, Federal Practice and Procedure § 1216, pp. 235-36 (3d

ed 2004) (hereinafter Wright & lVliller) (“[T]he pleading must contain

something more . . . than . . . a statement of facts that merely creates a

suspicion [ot] a legally cognizable right of action”), on the assumption that

all the allegations in the complaint are true (even if doubtful in fact), geg,

e.q., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002) (“Rule

12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief

13

ofa complaint’s factual ailegations”); Scheuerv. Rhodes, 416 U.S. 232, 236

(1974) (a well-pleaded complaint may proceed even if it appears “that a

recovery is very remote and unlikely”) . . . . [W]e do not require heightened

fact pleading of specifics but only enough facts to state a claim to relief that

is plausible on its face.

Bell Atl. Corp. v. Twomblv, 550 U_S. at 555-56, 570 (footnote and other citations omitted;

brackets and omissions in origina|); see also Ashcroft v. lqbal, 556 U.S. at 678 (citing M

Ati. Corp. v. Twombly, 550 U.S. at 555-57, 570); Totes-lsotoner Corp. v. United States,

594 F.3d 1346, 1354-55 (Fed. Cir.), Lrt. denied, 562 U.S. 830 (2010); Bank of Guam v.

United States, 578 F.3d 1318l 1326 (Fed. Cir.) (“ln order to avoid dismissal for failure to

state a claiml the complaint must allege facts ‘plausibly suggesting (not merely consistent

with)’ a showing of entitlement to relief" (quoting Bell Atl. Corp. v. TWombl\/, 550 U.S. at

557)), reh’q and reh’q pp banc denied (Fed. Cir. 2009), M denied, 561 U.S. 1006

(2010); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff

must plead factual allegations that support a facially ‘plausible’ claim to relief in order to

avoid dismissal for failure to state a claim.” (quoting Bell Atl. Corp. v. Twomblv. 550 U.S.

at 570)); Ca[y v. United States, 552 F.3d 1373, 1376 (Fed. Cir.) (“The factual allegations

must be enough to raise a right to relief above the speculative level. This does not require

the plaintiff to set out in detail the facts upon which the claim is based, but enough facts

to state a claim to relief that is plausible on its face.” (citing Bell Atl. Corp. v. `l`womblv,

550 U.S. at 555, 570)), Mg denied (Fed. Cir.), c_e;t_. denied, 557 U.S. 937 (2009);

Peninsula Grp. Capital Corp. v. United States, 93 Fed. Cl. 720, 726-27 (2010), appeal

dismissed 454 F. App’x 900 (2011); Lean Aid Soc’v of New York v, United States, 92

Fed. Cl. 285, 292, 298, 298 n.14 (2010); Hall v_ Bed Bath & Bevond, lnc.. 705 F.3d 1357,

1362 (Fed. Cir. 2013) (“the factual allegations must ‘raise a right to relief above the

speculative level’ and must cross ‘the line from conceivable to plausible.’" (quoting M

At|. Corp. v. Twombly, 550 U.S. at 555)).

VVhen deciding whether a plaintiff has failed to state a claim upon which relief can

be granted, the court assumes that the undisputed facts alleged in the complaint are true

and must draw all reasonable inferences in the non -’movant s favor. See Cambridge v.

U_nited States 558 F. 3d at 1335 (citing Papasan v Allain, 478 U. S. 265 283 (1986));

Ca[y v. United States, 552 F. 3d at 1376 (citing Gould lnc. v. United States 935 F. 2d

1271 1274 (Fed. Cir.1991)); Anaheim Gardens v. United States 444 F. 3d 1309 1315

(Fed. Cir.), Mg denied (Fed. Cir. 2006); Bovle v, United States, 200 F.3d 1369, 1372

(Fed. Cir. 2000); Perez v. United States, 156 F.3d at 1370; l~ienke v. United States, 60

F.3d at 797. lf a defendant or the court challenges jurisdiction or a plaintiffs claim for

relief however, the plaintiff cannot rely merely on allegations in the complaintl but must

instead bring forth relevant, competent proof to establish jurisdiction §_e_e l\/lcNutt v. Gen.

lVlotors Acceptance Corp. of lnd., 298 U.S. 178, 189 (1936); see also Revnolds v. Armv

& Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Therefore, although the court

must assume that the undisputed facts alleged in the complaint are true for the purposes

of the motion to dismiss and draws all reasonable inferences in the plaintiffs’ favor, the

facts alleged in the complaint must be plausible and not merely naked assertions devoid

of a factual basis wAshcron v. lgba|, 556 U.S. at 678; see also lVcheal v. Sprint Nextel

14

Corp., 501 F.3d at 1363 n.9 (Dyk, J., concurring in part, dissenting in part) (quoting C.

Wright and A. l\/liller, Federal Practice and Procedure § 1286 (3d ed. 2004)) (mere

allegations of law and conclusions of fact are insufficient to support a claim).

The United States Supreme Court has indicated that:

A taxpayer seeking a refund of taxes erroneously or unlawfully assessed or

collected may bring an action against the Government either in United

States district court or in the United States Court of Federal C|aims The

internal Revenue Code specifies that before doing so1 the taxpayer must

comply with the tax refund scheme established in the Code. That scheme

provides that a claim for a refund must be filed with the lnternal Revenue

Service (lRS) before suit can be brought, and establishes strict timeframes

forfiling such a claim.

United States v. Clintwood Elkhorn lVlininq Co., 553 U.S. 1, 4 (2008) (citations omitted);

see also RadioShack Corp. v. United States, 566 F.3d at 1360 (“[ljri the context of tax

refund suits the [Supremej Court has held that the Court of Federal Claims’ Tucker Act

jurisdiction is limited by the lnternal Revenue Code, including 26 U.S.C. § 7422(a).”).

Once a party has established compliance with 26 U.S.C. § 7422(a), the party mayl if

successful, also recover interest for its claim for refund, if successful. W Deutsche Bank

AG v. United States, 95 Fed. Cl. 423, 427 n.3 (2010) (“There is no question howeverl

that this court has subject matter jurisdiction under the Tucker Act, 28 U.S.C. § 1491

(2006)l over claims such as the present one, seeking to recover statutory interest on

income tax refunds.” (citing Brown & Williamson, Ltd. v. United States, 231 Ct. Cl. 413,

688 F.2d 747, 752 (1982))), M, 742 F.3d 1378 (Fed. Cir. 2014).

For this court to exercise jurisdiction over a plaintiffs federal tax refund claim, a

petitioning party must first satisfy the tax refund schematic detailed in Title 26 of the

internal Revenue Code, (W, sg_., 26 U.S.C. § 7422 (2012) and 26 U.S.C. § 6511

(2012)), which establish that a claim for refund must be filed with the lRS before filing suit

in federal court, as well as strict deadlines for filing such claims §eg United States v.

C|intwood Elkhorn l\/linind Co., 553 U.S. at4; Kiselis v. United States, 131 Fed. Cl. 54, 60

(2017) (“To establish jurisdiction Plaintiff must establish that he filed an administrative

refund claim With the lRS prior to filing suit in this Court."); Fremuth v. United States 129

Fed. Cl. 684, 688 (2016) (“This Court’s exercise of [tax refund] jurisdiction is subject,

however, to several statutory and jurisprudential prerequisites.”); Dumont v. United

States, 85 Fed. Cl. 425, 428 (“To recover underthe TuckerAct, a plaintiff must adhere to

the requirements of 26 U.S.C. § 7422(a), which states that ‘no such suit shall be

maintained in any court... until a claim for refund or credit has been duly filed with the

Secretary.’" (quoting 26 U.S.C. § 7422(a))), §_ffg, 345 F. App’x. 586 (Fed. Cir. 2009); §

also United States v. Dalm, 494 U.S. 596, 609-10, Mg denied, 495 U.S. 941 (1990);

Smith v. United States 111 Fed. Cl. 740l 743 (2013) (noting that Congress intended for

26 U.S.C. § 7422(a) to apply broad|y); Buser v. United States, 85 Fed. Cl. 248, 256

(2009). l\/loreover, for a refund claim, the court only may hear claims for Which the

petitioning taxpayer has fulfilled all of his or her tax liabilities for the tax year in question

15

before the refund claim is heard Flora v. United States, 357 U.S. 63, 72-73 (1958) (M

j), _a_f_E o_nMg, 362 U.S. 145 (Flora ll), @t_ilg denied, 362 U.S. 972 (1960). ln Flora ll,

the United States Supreme Court stated that 28 U.S_C. § 1346(a)(1) requires “payment

of the full tax before suit . . . Flora ll, 362 U.S. at 150, 177; see also Ledford v. United

States, 297 F.3d 1378, 1382 (Fed. Cir. 2002) (affirming United States Court of Federal

Claim’s dismissal of pro-se plaintiffs tax refund suit for lack of subject matter jurisdiction

when plaintiff did not allege that he had paid his taxes for the years in Which he sought a

tax refund and when plaintiffs tax returns submitted to the court also showed that plaintiff

did not pay any taxes for those years); Shore v_ United States, 9 F.3d 1524l 1526 (Fed.

Cir. 1993) (“The full payment requirement of Section 1346(a)(1) and Elpra applies equally

to tax refund suits brought in the Court of Federal Claims . . . (citing Tonasket v. United

States, 218 Ct. Cl. 709, 711-12, 590 F.2d 343 (1978))).

As noted above, before filing a tax refund claim in federal court, a plaintiff is

required to file a claim with the lRS for the amount of the alleged refund, pursuant to 26

U.S.C. § 7422(a), which states:

No suit or 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 authorityl 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

26 U.S.C. § 7422(a); see also Computervision Corp. v. United States, 445 F.3d 1355,

1363 (Fed. Cir.), reh’q and reh’q pp banc denied, 467 F.3d 1322 (Fed. Cir. 2006), M

denied, 549 U.S. 1338 (2007); Cooper v. United States, 123 Fed. Cl. 226, 232 (2015)

(holding that because plaintiffs tax forms did not comply with the requirements of 26

U.S.C. § 7422, the returns could not constitute duly filed refund claims). l\lloreover, when

pleading a claim for a tax refund, a party must include:

(A) a copy ofthe claim for refund, and

(B) a statement identifying:

(i) the tax year(s) for which a refund is sought;

(ii) the amount, date, and place of each payment to be

refunded;

(iii) the date and place the return was filed , if any;

(iv) the name, address and identification number of the

taxpayer(s) appearing on the return;

16

(v) the date and place the claim for refund was filed; and

(vi) the identification number of each plaintiff if different from

the identification number of the taxpayer.

iach 9(m)(2)(A)-(s) (2018).

'l'o the extent that plaintiff is attempting to assert a tax refund claim for the 2014

tax year, plaintiff thus far, has failed to state a claim in either his original complaint or his

amended complaint Plaintiff did not clearly state in his complaint that he is seeking a tax

refund for the 2014 year_ Further, despite the court’s February 28, 2018 Order, which

required plaintiff to clarify any potential tax refund claim he may seeking, plaintiff did not

state in his amended complaint that he was seeking a 2014 tax refund claim. Plaintiff also

did not attach to his amended complaint a copy of his 2014 tax refund claim or provide a

clear “statement" regarding various tax refund details as required under RCFC 9(m).

Plaintiffs only reference to a 2014 tax return was in connection with his asserted claim

against l\/lr. Rubin. Plaintiff stated in his amended complaint that “[d]uring the meeting lVlr.

Rubin assured the plaintiff that the 2014 tax return which was filed about February 16,

2015, would be recovered of $2,509.00.” Plaintiff only recent|y, in his August 10, 2018

filing, vaguely alluded to “refunds," stating that, “[d]ue to fraudulent activity on my tax

account, both years 2011 and 2014 were adversely affected therefore claims resulting in

refunds for both years should be allowed on behalf of Plaintiff" Plaintiff, however,

provided no additional information regarding the “refunds" alluded to in his August 10,

2018 filing that would allow the court to decipher what type of refund plaintiff is seeking

Whi|e the court recognizes that plaintiff is proceeding j@ Y, the court is under no duty

to "create a claim” that has not been included in the prp sp complaint g Lengen v.

United States 100 Fed. Cl. at 328. Even based on a very liberal reading of the plaintiffs

complaint and amended complaint, plaintiff has not asserted a valid, reviewable 2014 tax

refund claim. Therefore, to the extent that plaintiff is trying to assert a 2014 tax refund

claim, such claim should be dismissed at this time, without prejudicel for failure to state a

claim.

l\l. Plaintiff’s claim regarding the 2011 tax year.

Defendant also has extrapolated from plaintiffs vague complaint and vague

amended complaint that plaintiff is seeking a “Tax Refund for the Year 2011.” Defendant

also notes that plaintiffs 2011 tax refund claim may also give rise to “a lost or stolen

refund check” action pursuant to 31 U.S.C. § 3343 (2012). To the extent that plaintiff is

attempting to assert a tax refund claim for the 2011 tax year, plaintiff thus far, has failed

to state a claim in either his original complaint or his amended complaint. Plaintiff did not

state in his complaint or amended complaint that he is seeking a tax refund for the 2011

tax year_ Plaintiff only explicitly states in his complaint and amended complaint that he is

seeking a claim of “negligence" against the lRS and a vaguely worded misrepresentation

or fraud claim against David Rubin associated with the 2014 tax year, Further, plaintiff did

not include a copy of plaintiffs 2011 tax refund or a clear “statement" regarding the alleged

tax refund claim in his complaint or amended complaint, as required when asserting a tax

17

refund claim in this court. g RCFC 9(m). instead plaintiff randomly included in his

amended complaint some tax information regarding an allegedly fraudulently filed 2011

amended tax return plaintiffs tax identification numberl plaintiffs address at the time of

filing his 2011 tax return the address listed on an allegedly fraudulently filed 2011

amended tax return and the location in Which the allegedly fraudulent 2011 amended tax

return was filed Plaintiff has recently and still only vaguely alluded in his August 10, 2018

filing to “refunds,” stating that “[d]ue to fraudulent activity on my tax account, both years

2011 and 2014 were adversely affected therefore claims resulting in refunds for both

years should be allowed on behalf of the Plaintiff.” As noted above, however, plaintiff did

not provide any additional specificity or information regarding the “refunds” he is seeking

for the 2011 and 2014 years that would allow the court to decipher what type of refund

plaintiff is seeking As noted above, the court is under no duty to “create a claim” that has

not been included in the ng§_e complaint See l.enqen v. United States, 100 Fed. Cl. at

328. Even based on a liberal reading of plaintiffs complaint and amended complaint,

plaintiff has failed to assert a valid reviewable tax refund claim for 2011. Thus, to the

extent plaintiff is currently asserting a 2011 tax refund claim, such claim should be

dismissed at this time, Without prejudice, for failure to state a claim.

Regarding defendant’s assertion that plaintiff may be attempting to bring a lost or

stolen check claim, defendant states in its June 28, 2018 partial motion to dismiss that

“jt]hough the basis of plaintiffs claim for the 2011 tax year is not clear, there are causes

of action for a lost or stolen refund check. ln particular, 31 U.S.C. § 3343 provides a right

of recovery for individuals whose United States Treasury check has been lost or stolen.”

To the extent that plaintiff may have had in mind a lost or stolen check claim pursuant to

31 U.S.C_ § 3343, plaintiffs claim fails for failure to state a claim. The statute at 31 U.S.C.

§ 3343, which is titled “Check forgery insurance fund," states:

(a) The Department of the Treasury has a special deposit revolving fund

the “Check Forgery insurance Fund”. Necessary amounts are hereafter

appropriated to the Fund out of any moneys in the Treasury not

othen/vise appropriated and shall remain available until expended to

make the payments required or authorized under this section The Fund

consists of amou ntsm

(1) appropriated to the Fund; and

(2) received under subsection (d) of this section

(b) The Secretary of the Treasury shall pay from the Fund to a payee or

special endorsee of a check drawn on the Treasury or a depositary

designated by the Secretary the amount of the check without interest if

in the determination of the Secretary the payee or special endorse1

establishes that--

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(1) the check was lost or stolen without the fault of the payee or a

holder that is a special endorsee and whose endorsement is

necessary for further negotiation;

(2) the check was negotiated later and paid by the Secretary or a

depositary on a forged endorsement of the payee’s or special

endorsee’s name; and

(3) the payee or special endorsee has not participated in any part of

the proceeds of the negotiation or payment.

31 U.S.C. § 3343(a)-(b).

As a judge of this court explained:

To recover under § 3343, the following requirements must be met: (1) the

check is lost or stolen without the fault of the payee or a holder that is a

special endorsee and whose endorsement is necessary for further

negotiation (2) the check is negotiated and paid by the Treasurer on a

forged endorsement of payee’s or special endorsee’s name, and (3) the

payee or special endorsee has not participated directly or indirectly in the

proceeds of such negotiation or payment.

Curtin v. United States, 91 Fed. Cl. 683, 688 (2010); see also Olson v. United States, 194

Ct. Cl. 297, 302-03, 437 F.2d 981, 983-84 (1971); l_au v. United States, No. 01-150T,

2002 WL 535808, *1 n.3 (Fed. Cl. Feb. 22, 2002) (unpub|ished opinion) (“31 U.S.C.

§ 3343 (1994 8 Supp.V1999), allows the Treasury to issue replacement checks from the

Check Forgery insurance Fund to taxpayers once the iRS determines that the payee’s

endorsement was forged."). For example, in Hill v. United States, a judge of this court

ordered the defendant to re-issue a stolen check to plaintiff pursuant to 31 U.S.C. § 3343

and explained that:

The facts establish that Plaintiff has met the conditions established by 31

U.S.C. § 3343. First, the 2007 refund check was “deliberately redirected by

another individuai" “without Plaintiffs knowledge." Second, that individual

cashed the check, endorsing it under “i\/lark l-liil.” Third, “according to the

OSHP investigation,” Plaintiff was not aware ofthe individual impersonating

him, and therefore hadn’t “participated in any part of the proceeds of the

negotiation or payment.”

Hill v. United States 118 Fed. Cl. 373, 381 n.4, 385 (2014) (internal references omitted).

As noted above, in order for a party to recover under 31 U.S.C. § 3343, a party

must prove that a “check was lost or stolen,” and that the party is “without the fault.” _S_e_e

31 U.S.C. § 3343(b); see also Curtin v. United States, 91 Fed. Cl. at 688. Plaintiff does

not specifically allege in his complaint or amended complaint that he has lost a check or

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that someone has stolen a check from him. Although plaintiff briefly mentioned in his

August 10, 2018 filing that “[i]n this case a Treasury check was not merely stolen my

identify was[4] as supported by a Phiiadeiphia Police Report," plaintiff does not state that

the Treasury check belonged to him, nor does plaintiff provide additional information

regarding the stolen “Treasury check.” Further, in order to recover under 31 U.S.C.

§ 3343, the check must have a “forged endorsement of the payee’s or special endorsee’s

name.” B 31 U.S.C. § 3343(b). Plaintiff does not allege in his complaint or amended

complaint that someone presented a forged endorsement of plaintiffs name on any

document, let alone a lost or stolen check. As this court has previously noted, the court

is under no duty to “create a claim” that has not been included in a w ge complaint. §§

Lenqen v. United States, 100 Fed. Cl. at 328. Thusl to the extent plaintiff is currently

attempting to assert a lost or stolen check claim, the court finds that such claim should be

dismissed at this time, without prejudice, for failure to state a claim.

CONCLUSION

The court GRANTS defendants June 28, 2018 partial motion to dismiss the tort

and misrepresentation claims regarding the lRS and David Rubin and dismisses without

prejudice, all the other claims plaintiff may have been attempting to assertl Plaintiff’s

complaint is DlSMiSSED. The Clerk of Court shall enter JUDGIV|ENT consistent With this

opinion

lT lS SO ORDERED. //'é'A M_

NIAR|AN BLANK HORN

Judge

4 To the extent that plaintiff is attempting to assert a claim for identity theft, such claim

sounds in tort for which this court lacks jurisdiction See Krukowski v. United States, 129

Fed. Cl. 440, 443 (2016) (“ldentity theft is also a tort over which this Court does not have

jurisdiction.”); Aldridqe v. United States, 67 Fed. Cl. 113l 120 (2005) (“identity theft is also

a tort. . . . Therefore the United States Court of Federal Claims does not have jurisdiction

over this claim.” (internal citations omitted)).

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