FERGUSON et al v. USA, No. 1:2014cv00224 - Document 17 (Fed. Cl. 2014)

Court Description: REPORTED OPINION granting 5 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Francis M. Allegra. (dls) Copy to parties.

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FERGUSON et al v. USA Doc. 17 ORIGIt\|AI. l|n tW @nftr! $tsttr @ourt of /eUprut @tufmg No. 14-2247 (Filed: October 6,2014) LOWELL G. FERGUSON, and XIOMARA FERCUSON. pro se. Plaintiffs, FILED OcT - 6 2014 U.S. COURTOF FEDEFALCLAIMS - Tax refund suit; RCFC l2(b)(1); Jurisdiction tax jurisdiction is under 28 U.S.C. $ A92(a)(l) not 28 U.S.C. $ l3a6(a)(l); Statute of limitations in 28 U.S.C. g 6532(aXl); Equitable tolling -RFI Holdings; Motion to dismiss sranted. THE LINITED STATES, Defendant. OPINION Lowell G. Ferguson and Xiomara Ferguson, pro se, for plaintiffs. Paul George Galindo, Tax Division, United States Department of Justice, with whom was Assistant Attomey General Kathryn Keneally, for defendant. ALLEGRA, Judge: In this tax refund suit, plaintiffs, Lowell G. Ferguson and Xiomara Ferguson, seek to recover Social Security and Medicare taxes. see26u.s.c. $$ 3101-312s (2012). Defendant seeks to dismiss the case for lack ofjurisdiction under RCFC l2(bXl). For the reasons that follow, the court GRANTS defendant's motion. In 2005, Delta Airlines filed for bankruptcy under Chapter I I of the United States Bankruptcy code (11 u.s.c $$ I l0l-1174).' As a result of the bankruptcy, a porrion ofrhe company's assets were distributed to retired employees, including plaintiff Lowell Ferguson. Delta Airlines issued Mr. Ferguson a wage and tax statement, Form w-2, for the 2007 tax year, indicating that $6,045.00 was withheld for Social Security tax and $ 1,454.16 was withheld for Medicare tax. ' The lacts cited above are largely drawn from plaintiffs' complaint and, for purpose of this motion, are assumed to be correct. see Bell Att. Corp. v. Twombl/, 550 u.s. s44 (2007). Other facts recited herein are jurisdictional facts that derive from documents filed by defendant with its motion. See RCFC l2(d). Dockets.Justia.com On January 22,2011, Mr. Ferguson and his wife filed a Form 843 claim for refund with the Intemal Revenue Service (lRS) to recover $7,499, the amount withheld for Social Security and Medicare taxes. On April 4, 2011, the IRS sent plaintiffs a notice of the disallowance of their refund claim through certified mail. The notice instructed them that they could appeal the decision to the IRS Appeals Office or, altematively, file suit in a U.S. district court with jurisdiction or in the U.S. Court of Federal Claims. The notice stated that the suit must be filed "within 2 years from the date ofthis letter," and fuither explained "[i]fyou decide to appeal our decision first, the 2-year period still begins from the date ofthis letter." On April 15, 2011, plaintiffs appealed the decision to the IRS Appeals Office. On May 21,2012, the IRS Appeals Office mailed plaintiffs a letter, stating that it had sustained the disallowance of plaintiffs' claim for refund. The letter further advised that plaintiffs could file suit challenging the disallowance in a U.S. district court with jurisdiction or the U.S. Court of Federal Claims "within 2 years from the mailing date of this letter." OnMarch24,2014, plaintiffs filed a complaint in this court seeking to recover $7,499.00, plus filing fees and accountant's fees. On May 22,2014, defendant filed a motion to dismiss the complaint for lack ofjurisdiction pursuant to RCFC 12(bX1). On June 23,2014, plaintiffs filed their response. On July 8,2014, defendant filed a reply to plaintiffs' response to the motion to dismiss, requesting that the motion to dismiss be viewed alternatively as a motion to dismiss for failure to state a claim pursuant to RCFC l2(bX6). On October 3, 2014, the court permitted plaintiffs to file a suneply. The Tucker Act, 28 U.S. C. $ I a9l (a)( I ), grants this court j urisdiction over "any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department," including tax refund actions authorizedby 26 U.S.C. $ 7 422(a). See Kaplan v. UnitedStates,113 Fed. CI.84,86 (2013), vacated on other grounds, Fed. Cl. 491 (2014); Hinck v. United Stares,64 Fed. Cl. 7 t, 7 6 (2005), aff'd, 446 F.3d 1307 (Fed. Cir. 2006), aff d, 550 U.S. 501 (2007).' Such tax refund actions cannot be brought, in any courr, "until a claim for refund or credit has been duly hled" with the IRS. 26 U.S.C. g 7 422(a); United Statesv. Dalm,494 U.S.596,601-02(1990). An administrative refund claim must be filed ll5 'Thiscourt'sjurisdictionoverrefundsuitsdoes,?ot-NOT-derivefrom28U.S.C.$ l3a6(a)(l). See Rosemanv. United States,2013 WL 151716,at *1 n.2 (Fed. Cl. Jan.3,2013). The latter provision provides jurisdiction only for district court tax refund suits. See Hinck,64 Fed. Cl. at 74-76; see also New England Mut. Life Ins. Co. v. United States,52F.2d 1006, 1008 (Ct. Cl. l93l); M. Carr Ferguson, "Jurisdictional Problems in Tax Controversies," 48 Iowa L. Rev. 312, 346 n.175 (1962-1963) ("The jurisdiction ofthe Courr of Claims in tax cases is conferred by 28 U.S.C. $ 1491 . . . . Although the Court of Claims is mentioned in 28 U.S.C. $ 1346 . . . , it is only mentioned in passing by this younger statutory provision, reference being made to the jurisdiction already extended under the other sections."); see generally, Usibelli Coal Mine v. United States,54 Fed. Cl. 373,375-76 (2002), rev'd, on other grounds, 311 Fed. Appx. 350 (Fed. Cir. 2008). within two years from the date a tax is paid or three years from the time the retum was filed, whicheverislater.26U.S.C.$6511(a);seeUnitedStatesv.Dalm,494U.S.596,602(1990); Boeri v. United States,724 F.3d 1367, 1369 (Fed. Cir.), cert. denied, 134 S. Ct. 801 (2013). Section 6532(a)(l) of Title 26 provides the statute of limitations for such suits. It provides: [n]o suit or proceeding under section 7 422(ai) for the recovery ofany intemal revenue tax, penalty, or other sum, shall be begun before the expiration of6 months from the date of filing the claim required under such section . . . nor after the expiration of2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates. 26 U.S.C. $ 6532(a)(l); see also Dalm,494 U.S. ar 601-02; Hamzikv. United States,64 Fed. Cl. 766,766 (2005). Additionally, subsection (a)(4) provides that: [a]ny consideration, reconsideration, or action by the Secretary with respect to such claim following the mailing of a notice by certified mail or registered mail disallowance shall not operate to extend the period within which suit may be begun. of 26U.S.C.$6532(a)(4); Cadrechav.(lnitedStates,l04Fed. C|.296,303 (2012). Thesote exception to this rule is found in subsection (a)(2) ofsection 6532, which states that "[t]he 2-year period . . . shall be extended for such period as may be agreed upon in writing between the taxpayer and the Secretary." 26 u.s.c. g 6532(a)(2); see Cadrecha,104 Fed. cl. at304., Jackson v. United States, 100 Fed. Cl. 34, 45 (2011). Plaintiffs, however, assert that the refund claim in question is timely under the doctrrne ofequitable estoppel, citing, for this purpose, the language in the aforementioned IRS letter of May 21,2012. ln United States v. Brockamp,519 U.S. 34'j,349 (1997), the Supreme Court held that the sratute of limitations provision in 26 u.s.c. $ 6511 was not subject to equitable tolling. Shortly thereafter, the Federal Circuit, in RHI Holdings, Inc. v. United States, 142F.3d1459, 1462 (Fed. Cir. 1998), held that the statute of limitations provision in section 6532 is likewrse not subj ect to equitable tolling. A number of opinions, including those of this court, have followed suit. see MarcinkowslE v. united states,206 F.3d 1419, l42l-22 (Fed. cir. 2000); Palm v. United Stqtes,2014 WL 2536485, at *4-5 (Fed. Cl. June 5,2014); Jactcson v. United States,100 Fed. Cl. 34, 44-45 (2011); Brach v. United States,98 Fed. Cl. 60,67 (2011), aff'd on other grounds,443 Fed. Appx. 543 (2011); Estate of orlando v. united states,94 Fed. cl. 2g6, 292-93 (2010).' These cases make clear that the statute of limitation in section 6532 may not be 3 See also Garrett v. Il.S. Internal Revenue Serv.,8 Fed. Appx. 67g,6g0(9thCir.200l); Brewer v. United States,390 F. Supp. 2d 1378,1381 (S.D. Ga. 2005); see generally Becton Dickinson & Co. v. Wolckenhauer,2l5 F.3d 340,348-49 (3d Cir.2000), cert. denied,52l U.S. -3- tolled for any reason, including plaintiffs' assertions with respect to statements previously made by IRS officials. Accordingly, based on the foregoing, the statute of limitations in section 6532(a)(l) is not tolled here and is fully applicable to plaintiffs' complaint. Plaintiffs' complaint, therefore, is untimely. Based on the foregoing, under RCFC l2(b)( I ), the court lacks jurisdiction over plaintifTs' complaint. The Clerk is hereby ordered to dismiss the complaint. IT IS SO ORDERED. l07l (2001); Danoffv. .United States,324 F. Supp. 2d 1086, 1099-1100 (C.D. Cal. 2004), aff'd, Appx. 950 (9'" Cir.2005). 135 Fed. ^

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