Cooper v. United States

In the United States Court of Federal Claims

No. 19-1553T

(Filed: August 13, 2020)

NOT FOR PUBLICATION

)

GARTH COOPER, )

) Pro Se Complaint; Motion to Dismiss;

Plaintiff, ) RCFC 12(b)(1); Dismissal for Lack of

) Subject Matter Jurisdiction; Claim

v. ) Challenging IRS Lock-In Letter; Tax

) Refund Claim.

THE UNITED STATES, )

)

Defendant. )

)

Garth Cooper, Decatur, GA, pro se.

Steven M. Chasin, Trial Attorney, with whom were Richard E. Zuckerman, Principal

Deputy Assistant Attorney General, David I. Pincus, Chief, Mary M. Abate, Assistant

Chief, Tax Division, Court of Federal Claims Section, Department of Justice,

Washington, DC, for defendant.

OPINION

CAMPBELL-SMITH, J.

Before the court is defendant’s motion to dismiss plaintiff’s complaint for lack of

subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States

Court of Federal Claims (RCFC), or, alternatively, for failing to state a claim, pursuant to

RCFC 12(b)(6). See ECF No. 11. In evaluating defendant’s motion, the court

considered: (1) plaintiff’s complaint, ECF No. 1; (2) defendant’s motion to dismiss, ECF

No. 11; (3) plaintiff’s response, ECF No. 14; and (4) defendant’s reply, ECF No. 16.

Oral argument was deemed unnecessary. For the following reasons, defendant’s motion

to dismiss is GRANTED.

I. Background

Plaintiff filed his complaint on October 2, 2019. See ECF No. 1. Plaintiff’s

claims appear to arise out of his receipt of a “lock-in letter” from the United States

Department of the Treasury, Internal Revenue Service (IRS). See id. at 3-4. The letter

informed plaintiff that the IRS reviewed his Form W-4 and determined that he was not

“entitled to claim exempt status,” and that the IRS had therefore sent plaintiff’s employer

a “lock-in letter” instructing his workplace to begin withholding income taxes from his

wages. ECF No. 1-8 at 5. Plaintiff alleges that this letter violates various laws including

the Restructuring and Reform Act, P.L. 105-206 (July 22, 1998), Federal Debt Collection

Procedures, 28 U.S.C. § 3001 et seq., and the regulations governing property seized by

the IRS, cited by plaintiff as 26 C.F.R. § 1.6001-1(d) and 26 C.F.R. § 601.326. See ECF

No. 1 at 3-5.

Plaintiff also received, from an IRS employee, a letter he called “threatening and

harsh” and a threat of “criminal prosecution and imprisonment.” Id. at 6. The letter was

sent “in reply to [plaintiff’s] correspondence received Apr. 8, 2019” and stated that the

arguments in plaintiff’s correspondence were “frivolous and ha[d] no basis in law.” ECF

No. 1-9 at 2. The IRS also encouraged plaintiff “to seek advice from a reputable tax

practitioner or attorney” and urged plaintiff “to honor those legal duties” to “file federal

tax returns and pay taxes.” Id. The letter included information about “some people who

encourage others to violate our nation’s tax laws by arguing that there is no legal

requirement for them to file income tax returns or pay income taxes,” and provided a list

of places plaintiff could find information about paying taxes and about the IRS criminal

enforcement program, which included the pertinent laws regarding filing requirements.

Id. at 2-3. Plaintiff alleges that the laws cited in that letter “may not be directly enforced

against [plaintiff] without publication in the Federal Register of implementing

regulations.” ECF No. 1 at 6.

Following his receipt of this correspondence, plaintiff filed suit in this court,

arguing that he “has never made a voluntary ELECTION to gift or bequest any property

to the United States.” Id. at 7. Plaintiff alleges that the lock-in letter sent by the IRS

violated federal laws and that he never owed any federal income tax in the first place.

See id. at 3-5. Specifically, plaintiff states that the IRS must “verify the taxpayer’s

liability” before any attempted collection, and plaintiff “has incurred no income tax

liability.” Id. at 3. Plaintiff supports this assertion with an affidavit wherein he states

that he “contracts labor in the private sector for private companies & never any U.S.

Federal Employers,” and that he “do[es] not derive income from sources within the

United States” and is “not a taxpayer.” Id. at 8. Therefore, he requests that the court

issue “an order for release of the Lock-in-Letter” and award him repayment of $400,000

“plus penalties and interest.” Id. at 7. Plaintiff does not specify whether this repayment

constitutes a refund or civil damages, though he does cite I.R.C. §§ 7433 and 7426 in

noting that “the [Restructuring and Reform] Act now requires a taxpayer to exhaust

[administrative] remedies before any civil damages are awarded.” Id. At 6-7.

Defendant filed a motion to dismiss on January 31, 2020 and included a certified

copy of the official IRS record for plaintiff and Karis Monroe, as married filing joint

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income taxes. See ECF No. 11. Defendant contends that this court does not have subject

matter jurisdiction to hear plaintiff’s claims, and, alternatively, that plaintiff has failed to

state a claim. See id. at 9. Plaintiff responded in opposition, ECF No. 14, and defendant

replied, ECF No. 16.

II. Legal Standards

A. Pro Se Plaintiffs

Plaintiff is proceeding pro se and is therefore entitled to a liberal construction of

his pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiring that allegations

contained in a pro se complaint be held to “less stringent standards than formal pleadings

drafted by lawyers”) (citations omitted). Pro se plaintiffs are “not expected to frame

issues with the precision of a common law pleading.” Roche v. U.S. Postal Serv., 828

F.2d 1555, 1558 (Fed. Cir. 1987). Accordingly, the court has examined the complaint

and plaintiff’s briefing thoroughly to discern all of plaintiff’s claims and legal arguments.

B. Dismissal for Lack of Jurisdiction, RCFC 12(b)(1)

Pursuant to the Tucker Act, this court has the limited jurisdiction to consider “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).

To invoke this court’s jurisdiction, plaintiff bears the burden of establishing by a

preponderance of the evidence that his claims are based upon the Constitution, a statute,

or a regulation that “can fairly be interpreted as mandating compensation by the Federal

Government for the damages sustained.” United States v. Mitchell, 463 U.S. 206, 217

(1983) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)); see also Reynolds v.

Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). In reviewing

plaintiff’s allegations in support of jurisdiction, the court must presume all undisputed

facts are true and construe all reasonable inferences in plaintiff’s favor. Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald,

457 U.S. 800, 814-15 (1982); Reynolds, 846 F.2d at 747 (citations omitted). If the court

determines that it lacks subject matter jurisdiction, it must dismiss the complaint. See

RCFC 12(h)(3).

III. Analysis

A. Jurisdiction

Defendant argues in its motion to dismiss that the court lacks jurisdiction to

consider plaintiff’s claims because plaintiff has not identified any substantive, money-

mandating claims in his complaint. See ECF No. 11 at 15-16. Defendant points out that

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the two statutes plaintiff cites to invoke jurisdiction, specifically, 28 U.S.C. §§ 2463 and

1346(a)(1), do not “‘affirmatively confer jurisdiction upon the federal courts.’” Id. at 15

(quoting Bowers v. J&M Discount Towing, LLC, 472 F. Supp. 2d 1248, 1267 (D.N.M.

2006)). And, the statutes cited by plaintiff in support of his monetary damages claim,

I.R.C. §§ 7433 and 7426, “restrict these claims to the jurisdiction of the District Court.”

Id. at 19. Further, defendant argues, to the extent plaintiff is attempting to assert a refund

claim, he has failed to satisfy the jurisdictional prerequisites for such a claim. Id. at 16-

19.

Plaintiff responds that “28 U.S.C. § 1346(a)(1) directly provides jurisdiction in

this matter” and asserts that “counsel has not provided the law and implementing

regulations that allows a non-judicial Seizures [sic].” ECF No. 14 at 1, 2. Plaintiff goes

on to cite “the implementing regulation for seizures of property in the internal revenue

code” as 26 C.F.R. § 601.326,1 and to cite 28 U.S.C. § 2463 in support of his assertion

that “The Lock-in-Letter is not a court order, thereby, violating the Restructuring and

Reform Act Procedural safeguards and Title 28-Judiciary and Judicial Procedure Chapter

176 Federal Debt Collection Procedure.” Id. at 2 (emphasis in original). Plaintiff also

argues that defendant “did not answer nor provided [sic] the subpoena documents,” and

that the exhibits attached to defendant’s motion are hearsay and “pertain[] to another

person named Karis Monroe.” Id.

Defendant replies that plaintiff “does not dispute most of defendant’s grounds for

dismissal, and offers nothing new—factually or legally—to support jurisdiction.” ECF

No. 16 at 1. Defendant argues that plaintiff’s failure to respond to the issues raised in

defendant’s motion constitutes a concession on those issues. See id. at 1-2. Defendant

adds that the arguments plaintiff does make in his response are “meritless” because the

statutes plaintiff cites are either not money-mandating or do not exist. Id. at 2-3.

Moreover, defendant notes, the public records defendant filed with its motion make clear

that plaintiff filed his taxes jointly with Karis Monroe. Id. at 3-4 (citing ECF No. 11 at

30-40).

The court finds that plaintiff has not met his burden of establishing this court’s

subject matter jurisdiction. Plaintiff clearly indicates his disagreement with the payment

of income taxes both generally and specifically, as it relates to the lock-in letter issued by

the IRS. See ECF No. 1 at 3-5, 7. The statutes plaintiff cites in support of this court’s

jurisdiction are not money-mandating statutes that operate to create jurisdiction in this

court. See Dumont v. United States, 345 Fed. App’x 586, 589 (Fed. Cir. 2009) (holding

that 28 U.S.C. § 1346(a)(1) is “merely [a] jurisdictional provision[]”); Upshur v. United

States, 135 Fed. Cl. 712, 713 (2017) (holding that 28 U.S.C. § 2463 is not money-

mandating); Hebert v. United States, 114 Fed. Cl. 590, 595 (2014) (noting that I.R.C. §

6331 does not establish a private right of action for money damages). And, plaintiff’s

1

Although plaintiff cites this regulation in both his complaint, see ECF No. 1 at 5, and his

response, see ECF No. 14 at 2, as defendant points out, it does not exist.

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citation to the Federal Debt Collection Procedures Act, 28 U.S.C. § 3001 et seq., ECF

No. 1 at 4-5, is also unavailing—as that act does not mandate money damages. See, e.g.,

Cox v. United States, 105 Fed. Cl. 213, 219 (2012). Likewise, the statutes plaintiff cites

in support of his civil damages claims, I.R.C. §§ 7433 and 7426, expressly restrict

jurisdiction under those statutes to the district courts. See 26 U.S.C. § 7433(a); 26 U.S.C.

§ 7426(a).

Plaintiff also fails to assert a substantive claim that “‘can fairly be interpreted as

mandating compensation by the Federal Government for the damages sustained.’”

Mitchell, 463 U.S. at 217 (quoting Testan, 424 U.S. at 400). “A tax refund claim, with

very few exceptions, is the only type of tax dispute over which this court has

jurisdiction.” Artuso v. United States, 80 Fed. Cl. 336, 338 (2008) (citing New York Life

Ins. Co. v. United States, 118 F.3d 1553, 1558 (Fed. Cir. 1997)). To establish this court’s

jurisdiction over a refund claim, a plaintiff is generally required to demonstrate that he

has paid the full amount of the taxes he seeks to have refunded. See Ledford v. United

States, 297 F.3d 1378, 1382 (Fed. Cir. 2002) (citing Flora v. United States, 362 U.S. 145,

177 (1960)). Even if the court understood plaintiff to be seeking a tax refund here,

plaintiff has failed to allege that he either paid the full amount of the taxes he seeks to

have refunded or that he filed a refund claim. See ECF No. 1.

B. Transfer

Because the court has concluded that it lacks jurisdiction in this case, it must

consider whether transfer to a court with jurisdiction is in the interests of justice:

[w]henever a civil action is filed in [this] court . . . and [this] court finds that

there is a want of jurisdiction, the court shall, if it is in the interest of justice,

transfer such action or appeal to any other such court . . . in which the action

or appeal could have been brought at the time it was filed or noticed . . .

28 U.S.C. § 1631 (2012). “Transfer is appropriate when three elements are met: (1) the

transferring court lacks subject matter jurisdiction; (2) the case could have been filed in

the court receiving the transfer; and (3) the transfer is in the interests of justice.” Brown

v. United States, 74 Fed. Cl. 546, 550 (2006) (citing 28 U.S.C. § 1631).”

The court has already determined that it lacks jurisdiction over plaintiff’s claims.

As noted by defendant, however, plaintiff’s claims stem from his assertion that he is not

liable for income tax. See ECF No. 1; ECF No. 11 at 26. These claims are frivolous and

without merit. See, e.g., Ledford v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002)

(noting that “every court that has considered” claims that the “federal tax code does not

tax compensation received for personal labor” has determined that those claims are

“wholly without merit”). For this reason, transfer of plaintiff’s claims to a federal district

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court would not be in the interest of justice. If plaintiff believes he has a viable claim that

can be heard in another forum, he may pursue such a case independently.

IV. Conclusion

Plaintiff does not assert any cognizable claim over which this court has subject

matter jurisdiction. Accordingly, defendant’s motion to dismiss, ECF No. 11, is

GRANTED. The clerk’s office is directed to ENTER final judgment DISMISSING

plaintiff’s complaint for lack of subject matter jurisdiction, in favor of defendant, without

prejudice.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Judge

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