MAURICE M. PAUL, Senior District Judge.
This matter is before the Court on several motions: Defendant's Motion to Dismiss or in the Alternative for Summary Judgment, (Doc. 19), to which Plaintiff has responded. (Doc. 20). Plaintiff has also filed a motion for summary judgment (Doc. 24), to which the government has responded, (Doc. 26), and Plaintiff has filed a reply brief. (Doc. 27). More recently, in Doc. 33, Plaintiff filed a Motion for Reconsideration of Doc. 31, the order of the Magistrate Judge denying Plaintiff's Motion to File a Second Amended Complaint. Mr. Martins also filed Doc. 34, a motion to recuse the undersigned.
The Court must begin with the Motion for Reconsideration and the Motion to Recuse. In the two motions, the Plaintiff notes that the order at Doc. 31 was entered onto the docket on the same day of the passing of Magistrate Judge Kornblum after a period of illness. He asserts that the order must therefore have been fraudulently entered by opposing counsel and the Clerk's office who, he claims, "impersonated former Magistrate Judge Kornblum." Doc. 33. Further, he claims that the undersigned should recuse himself because the undersigned knew of this subterfuge and either condoned or ignored it.
His claim is without merit. The order was personally approved by Magistrate Judge Kornblum, and later signed electronically pursuant to court rules.
The undersigned now turns to the Defendant's motion to dismiss and the Plaintiff's motion for summary judgment.
I. Allegations of the First Amended Complaint (doc. 18)
Plaintiff proceeds pro se, and he has paid the filing fee. He is suing the Internal Revenue Service for failing to refund income taxes paid to the government on wages earned as a driver for the United Parcel Service (UPS) during the years 2003, 2005, 2006, and 2007
Plaintiff seeks a return of "overpayments" in the total amount of $38,527.55, plus interest; costs of suit; remand to the proper authorities of all the federal officials who abused the law in regard to Plaintiff's returns; and an expungement of all false documents relating to Plaintiff's tax returns.
II. Standard of Review
A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56;
III. Defendant's evidence
Declaration of Paul A. Allulis (Doc. 19)
Mr. Allulis is a trial attorney in the Department of Justice, Tax Division, and he attached administrative transcripts of Plaintiff's account for the tax years at issue.
IV. Plaintiff's responses, including Plaintiff's Motion (docs. 20, 24 and 27).
Plaintiff reiterates his argument that the Sixteenth Amendment to the United States Constitution prohibits direct income tax; that the pay he received from UPS is not wages as defined by the Internal Revenue Code; and that he is entitled to a full refund of all taxes withheld.
Attached to his affidavit is a letter dated February 4, 2009, from the IRS Disclosure Office that states, "I have reviewed your account and found no assessments pertaining to you for tax years 2003-2007." Also attached are USPS certified mail receipts showing when he delivered his tax returns to the IRS for the years 2003-2007.
Failure to state a claim
Plaintiff's complaint raises issues recently decided in
Likewise, Plaintiff's arguments over the plain meaning of the words "wages," "employee," and "business," are frivolous as well and do not warrant consideration. (
Lack of Jurisdiction
Federal courts exercise jurisdiction over suits for the refund of federal taxes pursuant to 28 U.S.C. § 1346(a)(1), which, along with 26 U.S.C. § 7422(a), constitutes a waiver by the United States of its sovereign immunity. The burden of demonstrating that sovereign immunity has been waived falls on the party bringing suit against the sovereign. See
The government contends that Plaintiff has not complied with the pre-requisites for suits concerning tax years 2005 and 2006 because he did not pay the full amount of the contested tax liability for these years as required. See
The government responded to Plaintiff's motion for summary judgment and explained in more detail what the transactional history shows, referred to as "literal transcripts." The government also represents that additional information showing the tax liability for years 2005 and 2006 was attached to the IRS Disclosure Office letter, but Plaintiff did not provide it, perhaps precisely because it would show that he did not make full payment on money he owed the IRS. Indeed, the letter refers to "nine pages of Form 23C documents which pertain to tax years 2005 and 2006." (Doc. 20, Exhibit A).
In light of the government's proof and Plaintiff's partial submission of proof on the issue, the Court finds that lack of jurisdiction as to tax refunds for years 2005 and 2006 is an additional ground for dismissal.
The government argues that the injunctive relief sought by Plaintiff is also foreclosed by statute. The Anti-Injunction Act provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person...." 26 U.S.C. § 7421(a). Having found that Plaintiff has stated no claim for relief, it is unnecessary to decide whether the particular type of relief sought is available to him.
Accordingly, it is