Whiteford v. United States

In the United States Court of Federal Claims

No. 19-1689

(Filed: 10 April 2020)

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JOSEPH BRIAN WHITEFORD AND *

GWENN CATHERINE WHITEFORD, *

*

Plaintiffs, * Pro se; RCFC 12(b)(1); RCFC 12(b)(6);

* Subject-Matter Jurisdiction; Tax Refund

v. * Claim; In Forma Pauperis.

*

*

THE UNITED STATES, *

*

Defendant. *

*

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OPINION AND ORDER

Joseph B. Whiteford and Gwenn C. Whiteford, pro se, all of Murrysville, PA.

Margaret E. Sheer, Trial Attorney, with whom were Richard E. Zuckerman, Principal

Deputy Assistant Attorney General, and David I. Pincus, Chief, Court of Federal Claims Section,

Tax Division, U.S. Department of Justice, all of Washington, D.C.

I. Introduction

Pro se plaintiffs Joseph Brian Whiteford (“Mr. Whiteford”) and Gwenn Catherine

Whiteford (“Mrs. Whiteford”), hereafter collectively referred to as “plaintiffs,” filed a complaint

alleging the government unlawfully collected and withheld their assets in connection with the

assessment of certain federal income tax for tax years 2013–2018. See generally Compl. at 2.

Plaintiffs seek “their withholdings since 2013 which amounts to $148,414.48” and a “$1,000,000

fine under [Internal Revenue Code §] 7433(b)(1) for reckless and malicious actions taken by the

Defendant,” for a total of “$1,148,414.48 (plus applicable interest).” Id. at 3–4. Plaintiffs

further filed separate motions to proceed in this matter in forma pauperis. See Application to

Proceed In Forma Pauperis, ECF No. 4 (“Mr. Whiteford’s Appl.”); Application to Proceed In

Forma Pauperis, ECF No. 5 (“Mrs. Whiteford’s Appl.”).

The government moved to dismiss this matter pursuant to Rules 12(b)(1) and 12(b)(6) of

the Rules of the United States Court of Federal Claims (“RCFC”), ECF No. 7 (“Def.’s Mot.”).

For the following reasons, the Court: (1) GRANTS plaintiff Joseph B. Whiteford’s motion to

proceed in forma pauperis; (2) GRANTS plaintiff Gwenn C. Whiteford’s motion to proceed in

forma pauperis; (3) GRANTS the government’s motion to dismiss; and (4) DISMISSES the

complaint.

II. Factual and Procedural History 1

A. Plaintiffs’ Tax Court Claims

1. Plaintiffs 2017 Joint Tax Court Petition

On 27 February 2017, plaintiffs jointly filed a petition in the United States Tax Court

challenging notices of deficiency and underpayment penalties pursuant to Internal Revenue Code

(“IRC”) § 6662(a) for tax years 2013 and 2014. Def.’s Mot., Ex. A at 2, Ex. B at 6. On 13

August 2018, the Tax Court upheld the notices of deficiency and application of a penalty under

IRC § 6662(a). See id. at Ex. B. In upholding the notices and penalty, the Court noted, “[a]t trial

petitioners presented no documentary evidence to support their position” but instead “relied

solely upon the testimony of [Mr. Whiteford], which did not address the substantive issues of the

case.” Id., Ex. B at 8. In holding, the Court noted it would “not painstakingly address

petitioner’s tax-protester arguments,” finding the “amounts of the deficiencies in the notice of

deficiency, which in this case equal the understatements, were $13,297 for 2013 and $16,570 for

2014, both of which exceed $5,000 and 10% of the tax required to be shown” to impose a

penalty. Id., Ex. B at 9–10.

2. Mr. Whiteford’s Individual 2019 Tax Court Petition

On 19 June 2019, Mr. Whiteford, individually, filed a petition in the Tax Court alleging

he “[n]ever received [a] Notice of Deficiency, or [a] Notice of Determination Concerning

Collection Action” for years “1995 to 2019.” Id., Ex. C at 13. On 13 August 2019, respondent

Internal Revenue Service (“IRS”) filed a motion to dismiss for lack of jurisdiction and to impose

a penalty under IRC § 6673. The IRS’ motion argued the Tax Court did not have jurisdiction

because “no notice of deficiency or notice of determination was issued to [Mr. Whiteford] for the

taxable years 1995 through 2019 within 150 days or 30 days, respectively, of the filing of the

petition.” Compl., Ex. A at 1.

On 13 September 2019, the Tax Court granted the IRS’s motion to dismiss Mr.

Whiteford’s petition, stating “respondent’s Motion to Dismiss for Lack of Jurisdiction . . . is

granted, and, with respect to each year placed in issue in the petition, this case is dismissed for

lack of jurisdiction upon the grounds stated in respondent’s motion.” Id.

3. Mrs. Whiteford’s Individual 2019 Tax Court Petition

On 22 July 2019, Mrs. Whiteford filed a separate, but similar petition to Mr. Whiteford’s

petition for tax years “1996 to 2019.” Def.’s Mot., Ex. D at 17. On 4 September 2019, the IRS

filed a motion to dismiss for lack of jurisdiction, arguing “no notice of deficiency . . . to form the

basis for a petition to this Court, had been sent to petitioner with respect to taxable years 1996

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The facts recited in this Opinion and Order are taken from: the complaint and the exhibits attached thereto; the

government’s motion to dismiss and the exhibits attached thereto; and plaintiffs’ response to the government’s

motion to dismiss, ECF No. 8, (“Pl.’s Resp.”) and exhibits attached thereto.

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through 2019, nor had [the Internal Revenue Service] made any other determination with respect

to petitioner’s tax years 1996 through 2019 . . . that would confer jurisdiction on the Court.”

Compl., Ex. B at 1.

On 25 September 2019, the Tax Court granted the IRS’s motion to dismiss Mrs.

Whiteford’s petition. Id. The Tax Court found “petitioner did not deny the jurisdictional

allegations . . . regarding lack of a pertinent notice or determination, nor did it suggest the

existence of any relevant notice or determination. To the contrary, petitioner proffered oft-

rejected challenges to the authority of the [IRS] in the context of income tax returns and related

assessments.” Id. The Court saw “no need to catalog petitioner’s arguments and painstakingly

address them.” Id. The Court granted the IRS’s motion and dismissed the case “for lack of

jurisdiction with respect to each year placed in issue in the petition upon the ground stated in

respondent’s motion.” Id., Ex. B at 2.

B. Plaintiffs’ Claims in This Court

On 30 October 2019, plaintiffs commenced this action and filed two motions to proceed

in forma pauperis. See Compl.; Mr. Whiteford’s Appl.; Mrs. Whiteford’s Appl. In the

complaint, plaintiffs allege the government caused them injury by taking “[p]laintiff’s property

since 1995 all the while with no Jurisdiction as evidence of Tax Court orders and violating

Plaintiff’s 4th Amendment Rights.” 2 Compl. at 2. Additionally, plaintiffs allege in “2018 [the]

IRS credited Plaintiff’s withholdings, which was unequivocal proof our withholdings were being

taken unlawfully.” Id. For relief, plaintiffs seek “$1,148,414.48 (plus applicable interest).” Id.

at 4.

In support of their complaint, plaintiffs attach four exhibits: (1) Exhibit A, the 13

September 2019 United States Tax Court Order Of Dismissal For Lack Of Jurisdiction of Joseph

B. Whiteford’s petition; (2) Exhibit B, the 25 September 2019 United States Tax Court Order Of

Dismissal For Lack Of Jurisdiction of Gwenn C. Whiteford’s petition; (3) Exhibit C, a 2018

letter from the IRS to Joseph B. Whiteford informing him of a 2018 overpayment and application

of funds to an unpaid balance; and (4) Exhibit D, a 3 May 2019 letter from the IRS informing

plaintiffs their claim for credit for the requested tax period was disallowed. Id., Exs. A–D.

Plaintiffs additionally attach a letter as an exhibit to their response to the government’s motion to

dismiss. See Pl.’s Resp., Ex. E. The letter, from plaintiffs to the IRS, includes jointly filed tax

returns from 2018 seeking a refund of payments “due to the fact [plaintiffs’] employers provided

W-2’s/1099 which erroneously” listed payments as wages. Id., Ex. E at 1.

On 31 December 2019, the government filed a motion to dismiss pursuant to rules

12(b)(1) and 12(b)(6) of the RCFC. See Def.’s Mot. at 1. On 27 January 2020, plaintiffs filed a

response to the government’s motion to dismiss. See Pl.’s Resp. On 13 February 2020, the

2

Plaintiffs allege in their complaint the government has taken their property since 1995, but for relief seek only their

“withholdings since 2013 which amounts to $148,414.48.” See Compl. at 2. Plaintiffs have failed to attach any

supporting documentation for all tax years prior to 2013. See Compl., Exs. A–D; Pl.’s Resp., Exs. A–E (showing

plaintiffs did not provide proof of a tax refund claim for the remaining tax years at issue). Plaintiffs clarify in their

response to the government’s motion to dismiss that “[o]ur claim is for the return of all withholdings [for] tax years

2013-2018.” Pl.’s Resp. at 6.

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government filed a reply to plaintiffs’ response to its motion to dismiss. See Reply in Further

Support of the Motion of the United States to Dismiss the Complaint, ECF No. 9 (“Def.’s

Reply”).

These matters having been fully briefed, the Court now addresses the pending motions.

III. Discussion

A. Pro Se Litigants

Pro se parties are granted greater leeway than litigants represented by counsel. See

Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding that pro se complaints are held to “less

stringent standards than formal pleadings drafted by lawyers”). This Court further recognizes

that “[w]hile a court should be receptive to pro se plaintiffs and assist them, justice is ill-served

when a jurist crosses the line from finder of fact to advocate.” Demes v. United States, 52 Fed.

Cl. 365, 369 (2002). Accordingly, the Court may excuse certain ambiguities in plaintiffs’

complaint, but the Court “does not excuse its failures, if such there be.” See Henke v. United

States, 60 F.3d 795, 799 (Fed. Cir. 1995).

In addition, this Court has long recognized “the leniency afforded to a pro se litigant

with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.”

Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). The pro se plaintiff—like any

other plaintiff—must establish the Court's jurisdiction to consider a claim. Riles v. United

States, 93 Fed. Cl. 163, 165 (2010).

1. Plaintiffs May Proceed In Forma Pauperis

Plaintiffs first request the Court allow them to proceed in forma pauperis. Pursuant to 28

U.S.C. § 1915(a)(1), “any court of the United States may authorize the commencement . . . of

any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person

who submits an affidavit that includes a statement . . . that the person is unable to pay such fees

or give security therefor.” A plaintiff need not “be absolutely destitute to enjoy the benefit of the

statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). An affidavit

demonstrating a plaintiff is unable to pay the fee or provide security, yet “still be able to provide

himself and dependents with the necessities of life,” is sufficient. Id.; see also Waltner v. United

States, 93 Fed. Cl. 139, 143 (2010) (quoting Fiebelkron v. United States, 77 Fed. Cl. 59, 62

(2007)) (stating the proper inquiry is whether “‘paying such fees would constitute a serious

hardship on the plaintiff, not that such payment would render plaintiff destitute’”).

Mr. Whiteford states in his application to proceed in forma pauperis: he currently

receives a gross monthly salary of $3,100 ($2,700 net); annual rental income of $32,400 “which

covers the mortgage, taxes, and upkeep of 2 rental properties” with “[n]o profit;” “less than

$100” in cash or in a checking, savings, or inmate account; and further provides for four

children. See Mr. Whiteford’s Appl. at 1–2. Mrs. Whiteford states in her application to proceed

in forma pauperis: she currently receives a gross monthly salary of $3,400 ($2,800 net); annual

rental income of $32,400 “which covers the mortgage, taxes, and upkeep of 2 rental properties”

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with “[n]o profit;” less than $1,000 in cash or in a checking, savings, or inmate account; and

further provides for four children. Mrs. Whiteford’s Appl. at 1–2.

Under these circumstances, plaintiffs have sufficiently demonstrated they are unable to

pay the Court’s filing fee. Plaintiffs’ respective applications to proceed in forma pauperis are

therefore GRANTED.

B. The Government’s Motion to Dismiss

The government moves to dismiss plaintiff’s complaint pursuant to RCFC 12(b)(1) and

RCFC 12(b)(6). See Def.’s Mot. at 1.

1. RCFC 12(b)(1) – Lack of Subject-Matter Jurisdiction

In considering a motion to dismiss for lack of subject-matter jurisdiction, “a judge must

accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551

U.S. 89, 94 (2007); see also Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.

Cir. 2011) (“In determining jurisdiction, a court must accept as true all undisputed facts asserted

in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”).

Plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the

evidence.” Reynolds v. Army and Air Force Exchange Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

“If the court finds that it lacks jurisdiction over the subject matter, it must dismiss the claim.”

Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

The ability of the Court of Federal Claims to entertain suits against the United States is

limited, and the waiver of immunity “may not be inferred, but must be ‘unequivocally

expressed.’” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (quoting

United States v. Mitchell, 445 U.S. 535, 538 (1980)). The Tucker Act grants this Court

jurisdiction over “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). “The Tucker Act . . . is itself only a jurisdictional

statute; it does not create any substantive right enforceable against the United States for money

damages. . . . [T]he Act merely confers jurisdiction upon it whenever the substantive right

exists.” United States v. Testan, 424 U.S. 392, 398 (1976). For tax disputes, this Court’s

jurisdiction is generally limited to tax refund suits. See 28 U.S.C. § 1346(a)(1) (granting the

Court of Federal Claims concurrent jurisdiction with federal district courts over “[a]ny civil

action against the United States for the recovery of . . . 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”).

In such tax suits, the Court of Federal Claims jurisdiction is limited to those situations

where the taxpayer has complied with the relevant provisions of the Internal Revenue Code. See

United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008) (citing United States v.

Dalm, 494 U.S. 596, 609–10 (1990)) (“The Internal Revenue Code specifies that before [filing in

the Court of Federal Claims], the taxpayer must comply with the tax refund scheme established

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in the Code.”). To meet this Court’s jurisdictional requirements in a tax refund suit, a plaintiff

must: (1) satisfy the full payment rule; (2) timely file a tax refund claim with the IRS; and (3)

“provide the amount, date, and place of each payment to be refunded,” along with “a copy of the

refund claim.” Fry v. United States, 72 Fed. Cl 500, 510 (2006). The “full payment rule”

requires a taxpayer to fully pay their federal income tax at issue prior to bringing suit in the

Court of Federal Claims. See Flora v. United States, 362 U.S. 145, 150 (1960); see also Shore v.

United States, 9 F.3d 1524, 1527 (Fed. Cir. 1993) (“The Flora full payment rule requires that

taxpayers prepay the tax principal before the Court of Federal Claims will have subject matter

jurisdiction over their tax refund action under § 1491.”).

As specified in the Internal Revenue Code, before seeking a refund, “the taxpayer must

comply with the tax refund scheme established . . . [which] provides that a claim for a refund

must be filed with the [IRS] before suit can be brought, and establishes strict timeframes for

filing such a claim.” Clintwood Elkhorn, 553 U.S. at 4. 26 U.S.C. § 7422(a) provides the

applicable requirements:

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 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.

Accordingly, this Court does not possess subject-matter jurisdiction to consider a claim to

recover internal revenue tax unless the taxpayer first files a claim for a tax refund with the IRS.

See Strategic Hous. Fin. Corp. of Travis Cty. v. United States, 608 F.3d 1317, 1324 (Fed. Cir.

2010) (“[A] party seeking to recover any internal-revenue tax, penalty, or sum from the United

States must pursue and exhaust its administrative remedies pursuant to the IRS's regulations prior

to filing a complaint in federal court.”). “Pursuant to I.R.C. § 6512(a), [the Court of Federal

Claims] lacks jurisdiction over a tax refund case if the plaintiff seeks a refund for the same tax

year covered in a deficiency notice and in the plaintiff’s petition to the Tax Court.” Cheesecake

Factory Inc. v. United States, 111 Fed. Cl. 686, 695 (2013).

A plaintiff filing a tax refund suit in this Court must include the following with the

complaint:

(A) a copy of the 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 [under seal] of the

taxpayer(s) appearing on the return;

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

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(vi) the identification number [under seal] of each plaintiff, if different from

the identification number of the taxpayer.

RCFC 9(m).

Lastly, the Federal Circuit has held the Court of Federal Claims is without jurisdiction to

entertain a claim for damages alleging unlawful collection activities of the IRS; such claims must

be brought before a United States district court. See Ledford v. United States, 297 F.3d 1378,

1382 (Fed. Cir. 2002) (affirming dismissal of plaintiff’s claim for damages based on the IRS’s

collection activities as outside the Court’s subject matter-jurisdiction).

2. RCFC 12(b)(6) – Failure to State a Claim

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC

12(b)(6). See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (“A motion to

dismiss . . . for failure to state a claim upon which relief can be granted is appropriate when the

facts asserted by the claimant do not entitle [the claimant] to a legal remedy.”). To survive a

motion to dismiss for failure to state a claim, the complaint must include “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). Such a claim must be sufficient for the defendant to have “fair notice” of the claim and

the “grounds upon which it rests.” Id. at 555 (quoting Fed. R. Civ. P. 8(a)(2)). A plaintiff must

“plead[] factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556).

IV. Analysis

A. Jurisdiction Over Plaintiff’s Claims

1. Jurisdiction Over Plaintiffs’ “Takings” Claim

Plaintiffs allege the government took their “property since 1995 all the while with no

Jurisdiction as evidence of Tax Court orders and violating Plaintiff’s 4th Amendment Rights.”

Compl. at 2. Under Federal Circuit precedent, claims for damages for the unlawful collection

activities of the IRS must be brought before a United States district court. See Ledford, 297 F.3d

at 1382 (affirming dismissal of plaintiff’s claim for damages based on the IRS’s collection

activities as outside the Court’s subject matter-jurisdiction); see also Zolman v. United States,

Nos. 17-1901, 17-1902, 2018 WL 1664690, at *2 (Fed. Cl. April 6, 2018) (holding that only the

district courts, and not the Court of Federal Claims, possess subject-matter jurisdiction to

consider damages claims resulting from unauthorized collection actions). Therefore, this Court

is without jurisdiction to entertain a claim for damages flowing from the alleged unlawful

collection activities of the IRS.

To the extent plaintiffs allege a Fourth Amendment violation, this Court is also without

jurisdiction to hear such a claim. In the context of a challenge to tax collection suits under the

Fourth Amendment, the Federal Circuit has held “the Fourth Amendment is not a money-

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mandating constitutional provision, [and so the Court of Federal Claims] lacks subject matter

jurisdiction.” Johnson v. United States, 127 Fed. Cl. 529, 537 (2016) (citing Brown v. United

States, 105 F.3d 621, 623 (Fed. Cir. 1997)). 3

Plaintiffs additionally argue the Tax Court’s dismissal orders demonstrate the IRS lacked

taxing authority and satisfy this Court’s jurisdictional requirement. See Compl. at 2. This

argument reflects a fundamental misunderstanding of the Tax Court’s dismissal orders. Similar

to this case, in Wall v. United States, the plaintiff argued the Tax Court’s dismissal for lack of

jurisdiction meant that the IRS lacked the authority to enforce its liens. 141 Fed. Cl. 585, 589–

90 (2019). This Court held the Tax Court’s dismissal order “concluded that the Tax Court

lacked jurisdiction over plaintiff's petition, which was, at that time, pending before the Tax

Court, not that the IRS lacked the ability to place liens on plaintiff’s assets.” Id. at 597. In this

case, the Tax Court’s 13 September 2019 and 25 September 2019 orders were only concerned

with the Tax Court’s own ability to entertain plaintiffs’ claims for relief—not whether the IRS

had the requisite taxing authority. The Tax Court’s ruling stands only for the proposition that the

Tax Court lacked jurisdiction to consider plaintiffs’ respective petitions due to the failure to

satisfy jurisdictional requirements. Plaintiffs may not rely on the Tax Court dismissal orders to

demonstrate the IRS lacked taxing authority and thus satisfy this Court’s jurisdictional

requirements.

Finally, plaintiffs allege due process violations, stating: “[d]ue process must be in

evidence before property can be ordered to be seized, taken, or withheld in the name of tax . . .

[and] [p]laintiffs were denied all required legal due process of Law entirely, and without

possessing any true statutory authority under the statutes, necessary to make seizures of property

from [plaintiffs].” Pl.’s Resp. at 7 (emphasis omitted). “To be cognizable under the Tucker Act,

the claim must be for money damages against the United States, and the substantive law must be

money-mandating.” Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013). “The law is

well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do not

mandate the payment of money and thus do not provide a cause of action under the Tucker Act.”

Id. Therefore, plaintiffs’ due process claims are beyond the jurisdiction of this Court.

2. Plaintiffs’ Tax Refund Claim

i. Tax Years 2013, 2014, and 2016

3

Plaintiffs also allege a Fifth Amendment takings claim due to “[b]latant and intentional violations of federal

Internal Revenue law.” Pl.’s Resp. at 4. To satisfy Court of Federal Claims Jurisdiction, “[i]t is undisputed that the

Takings Clause of the Fifth Amendment is a money-mandating source [of law] for purposes of Tucker Act

jurisdiction.” Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008). A court must “‘look to the

true nature of the action instead of merely relying on the plaintiff’s characterization of the case’” to “determin[e] the

existence and grounds for [its] jurisdiction.” Doe v. United States, 372 F.3d 1308, 1315 (Fed. Cir. 2004) (quoting

Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)). In this case, plaintiffs assert numerous claims, including

claims for fraud and their “withholdings . . . being taken unlawfully.” See generally Compl; Pl.’s Resp. To satisfy a

takings claim, however, the “claimant must concede the validity of the government action which is the basis of the

taking claim to bring suit under the Tucker Act.” Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir.

1993). Here, plaintiffs’ takings claims are based upon allegations of fraud and unlawful withholding by the IRS.

See Compl. at 2. To the extent plaintiffs allege any takings claims, such claim must be dismissed as plaintiffs do not

“concede the validity of the government action which is the basis of the taking claim.” Tabb Lakes, 10 F.3d at 802.

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Plaintiffs seek a tax refund for tax years 2013, 2014, and 2016. See Compl. at 2. To

satisfy this Court’s jurisdictional requirements, plaintiffs must have: (1) timely filed a refund

claim; and (2) fully paid his or her tax liability. Tiernan v. United States, 113 Fed. Cl. 528, 531

(2013) (discussing the Court of Federal Claims jurisdictional requirements as requiring plaintiff

to file a claim with the Secretary of the treasury and “have fully paid the pertinent tax liability”);

see also Shore, 9 F.3d at 1527 (finding taxpayers must prepay tax principal prior to suit in the

Court of Federal Claims). For tax years 2014 and 2016, plaintiffs failed to comply with the full

payment rule, as IRS records reflect plaintiffs have unpaid tax liabilities. See Def.’s Mot., Ex. F

at 28–31, 36–38. Therefore, this Court lacks jurisdiction over any alleged refund claim for tax

years 2014 and 2016.

Additionally, for tax years 2013 and 2014, plaintiffs previously litigated these years in

Tax Court. See Def.’s Mot., Ex. B at 5–11. “Pursuant to I.R.C. § 6512(a), [the Court of Federal

Claims] lacks jurisdiction over a tax refund case if the plaintiff seeks a refund for the same tax

year covered in a deficiency notice and in the plaintiff’s petition to the Tax Court.” Cheesecake

Factory Inc., 111 Fed. Cl. at 695. Plaintiffs therefore cannot seek to revive these claims for the

entirety of their withholding in this Court. See Smith v. United States, 495 F. App’x. 44, 48 (Fed.

Cir. 2012) (per curiam) (explaining that I.R.C. § 6512(a) precludes the Court of Federal Claims

from exercising jurisdiction over “previously filed Tax Court petitions seeking redetermination

of the same liabilities”). Therefore, this Court further lacks jurisdiction over plaintiffs’ claims

for tax years 2013 and 2014 as a result of plaintiffs’ previously filed petitions in the Tax Court.

ii. Tax Years 2015 and 2017

Plaintiffs seek a tax refund for tax years 2015 and 2017. See Compl. at 2. To satisfy this

Court’s jurisdictional requirements, plaintiffs must have: (1) timely filed a refund claim; and (2)

fully paid his or her tax liability. See Tiernan, 113 Fed. Cl. at 531; Shore, 9 F.3d at 1527.

Additionally, plaintiffs must comply with the filing requirements of RCFC 9(m). “The

requirements of [RCFC 9(m)] embody the jurisdictional prerequisites for maintaining such a suit

in [the Court of Federal Claims.]” Simmons v. United States, 127 Fed. Cl. 153, 160 (2016).

Plaintiffs who fail to comply with RCFC 9(m) are subject to dismissal, and “[t]his Court has

consistently dismissed similar suits where a plaintiff failed to provide any of the information or

documents required by [RCFC] 9(m).” Charles Adair v. United States, No. 19-1122, 2020 WL

1486861, at *4 (Fed. Cl. Mar. 26, 2020); see also Leber v. United States, 146 Fed. Cl. 9, 12

(2019) (dismissing the plaintiff’s claim for failure to comply with RCFC 9(m)).

For tax years 2015 and 2017, IRS records show plaintiffs compliance with the full

payment rule. Yet plaintiffs fail to attach copies of a refund claim to satisfy this Court’s

jurisdictional requirements under RCFC 9(m). See Compl., Exs. A–D; Pl.’s Resp., Exs. A–E.

Without the proper supporting documentation, plaintiffs are unable to provide compliance with,

and proof of, a timely refund claim. Id. Therefore, this Court lacks jurisdiction over tax years

2015 and 2017.

iii. Tax Year 2018

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For tax year 2018, plaintiffs argue the “IRS credited Plaintiff’s withholdings, which was

unequivocal proof our withholdings were being taken unlawfully.” Compl. at 2. Additionally,

plaintiffs argue their “‘wages’ were erroneously reported as ‘income,’” which plaintiffs

attempted to rebut by submitting a corrected IRS form. Pl.’s Resp. at 5. Pursuant to I.R.C. §

6402(a), the IRS “may credit the amount of [an] overpayment, including any interest allowed

thereon, against any liability in respect of an internal revenue tax on the part of the person who

made the overpayment.” This “statute grants broad authority to the IRS to credit overpayments

to any tax liability, which may reasonably include interest and penalties.” Smith v. United States,

4 F. App’x 759, 761 (Fed. Cir. 2001) (unpublished per curium decision). For tax year 2018, IRS

records show plaintiffs fully paid their tax liability and an overpayment was credited to pay

outstanding liabilities in tax years 2013 and 2014. Def.’s Mot., Ex. G at 43. To the extent

plaintiffs’ complaint can be construed as a tax refund claim, this Court lacks jurisdiction as

I.R.C. § 6402(a) grants the IRS authority to credit overpayments against any outstanding tax

liabilities. See Smith, 4 F. App’x at 761 (discussing I.R.C. § 6402 and the IRS’s ability to credit

the amount of an overpayment). Therefore, this Court lacks jurisdiction over tax year 2018.

3. Plaintiffs’ Fraud and Criminal Claims

Plaintiffs further argue I.R.C. § 7433 “plainly and clearly authorizes a civil action against

the United States where employees of the [IRS] recklessly or intentionally disregard any

provision of Title 26 . . . [a]s the IRS will not return our property.” Pl.’s Resp. at 1.

Additionally, plaintiffs argue pursuant to I.R.C. § 6020, they received “no subscribed [substitute

for return] documents for tax years involved,” and these unsubscribed documents “can only be

fraudulent computer data falsely entered as claimed SFR data, entered by statutorily

unauthorized . . . [IRS] employees, that has wrongfully been used . . . as evidence against the

plaintiff[s].” Id. at 4–5 (emphasis omitted).

Under the Federal Tort Claims Act, jurisdiction over tort claims against the United States

lies exclusively in federal district courts. 28 U.S.C. § 1346(b)(1) (“[T]he district courts . . . shall

have exclusive jurisdiction of civil actions on claims against the United States, for money

damages . . . for injury or loss of property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while acting within the scope of

his office or employment . . . .”); see also 28 U.S.C. § 1491(a)(1) (“The United States Court of

Federal Claims 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.”) (emphasis added). In this

regard, remedies in the Court of Federal Claims are significantly different than a federal district

court. See Ledford, 297 F.3d at 1382. “Where the adjudication of a type of claim has been

granted to the district courts exclusively, [the Court of Federal Claims] has no jurisdiction to hear

the case and must dismiss the matter.” Ross v. United States, 122 Fed. Cl. 343, 348 (2015).

Therefore, to the extent plaintiffs’ relief is based on alleged tortious conduct, the Court of

Federal Claims lacks jurisdiction.

Lastly, plaintiffs allege criminal violations under I.R.C. § 7214, seeming to allege

revenue officers and agents conducted “reckless and malicious actions” in the performance of

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their duties by not physically signing tax documents sent to plaintiffs or signing fraudulent

documents sent to plaintiffs. See Pl.’s Resp. at 2. As with tort claims, the Court of Federal

Claims is not a district court and lacks jurisdiction over criminal acts. See Hufford v. United

States, 87 Fed. Cl. 696, 700 (2009) (“[The Court of Federal Claims] lacks jurisdiction to

adjudicate criminal claims.”). Therefore, to the extent plaintiffs allege criminal acts, this Court

lacks jurisdiction.

V. Conclusion

The Court has considered all of plaintiffs’ arguments. To the extent not discussed

specifically herein, plaintiffs’ other claims are unpersuasive, meritless, or unnecessary for

resolving the issues currently before the Court. The Court of Federal Claims lacks subject-

matter jurisdiction to consider plaintiffs’ claims for the tax years 2013–2018. The Court hereby:

(1) GRANTS plaintiff Joseph B. Whiteford’s motion to proceed in forma pauperis; (2)

GRANTS plaintiff Gwenn C. Whiteford’s motion to proceed in forma pauperis; (3) GRANTS

the government’s motion to dismiss; and (4) DISMISSES the complaint.

IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE

Judge

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