United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
Plaintiff, Patrick Meconi ("plaintiff"), filed a complaint against the Internal Revenue Service ("IRS") and five individually named IRS agents on August 14, 2012, seeking return of an estimated tax deposit he "entrusted to IRS' safe keeping." (D.I. 2 at 2.) Plaintiff proceeds prose and has been granted leave to proceed in forma pauperis. This court has jurisdiction pursuant to 28 U.S.C. § 1340 "of any civil action arising under any Act of Congress providing for internal revenue, " and under 28 U.S.C. § 1346 in suits against the United States for "the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected... or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws."
While the IRS was originally included as a named defendant, Congress has not authorized suit against the IRS with respect to an action of the type plaintiff filed. On November 13, 2012, this court substituted the United States for the Internal Revenue Service as a party defendant and allowed plaintiff to proceed. Presently before the court is the United States' motion to dismiss for lack of subject matter jurisdiction under FED. R. CIV. P. 12(b)(1), and a motion to dismiss the claims against the individually named defendants for failure to state a claim upon which relief can be granted under FED. R. CIV. P. 12(b)(6). (D.I. 28.)
Plaintiff alleges his wife managed all of their business and personal financial affairs for forty years. (D.I. 32, ex. 67- 2/2.) Because of Alzheimer's disease, after the 2003 tax year she was incapable of providing "any meaningful information for tax filing purposes, " and financial information was "co-mingled, misfiled and lost." ( Id. ) Plaintiff contends he made "generous deposits" to the IRS in 2005, 2006, and 2007 using Form 1040-ES for estimated taxes. (D. I. 2 at ¶ 3.) Not until 2010 was plaintiff able to file original Form 1040 returns for tax years 2004 through 2009. Plaintiff proffers his tax returns were delayed because of caring for his spouse and his "commensurate and personal physical and emotional ordeal." (D. I. 2 at ¶ 2.) During his wife's illness, plaintiff experienced numerous health problems of his own, and underwent seven operations. (D. I. 32 at ex. 67- 2/2.)
Plaintiff maintains his deposits were based on "wildly conservative estimate[s]" of his tax liability. ( Id. ) Plaintiff's wife passed away in January 2010. ( Id. ) When plaintiff finally was able to complete and file his tax returns in 2010, the 2004 through 2009 returns were carried forward which resulted in a single refund amount requested in the 2009 year tax filing. Plaintiff alleges the IRS caused confusion by scattering the six returns to six different agents in various IRS offices remote from his place of residence in Wilmington, Delaware.
Plaintiff further proffers the returns were incorrectly treated as Form 1040X amended tax returns, and the IRS improperly determined that some of the refund claims were invalid under 26 U.S.C. §§ 6511 (a) and 6511 (b)(2)(A), statutes of limitation governing tax refunds. In 2010, the IRS issued a refund to plaintiff for overpayments made in 2007 (for the 2006 tax year), but did not refund the 2005 and 2006 overpayments because only payments made within three years of the return filing can be refunded under§ 6511 (b)(2)(A).
Plaintiff appealed the IRS determination and provided supplementary documentation of "financial disability" as allowed under 26 U.S.C. § 6511 (h). (See, e.g., D. I. 32 at 41). The IRS denied plaintiff's claim because he did not meet the statutory criteria. (See D.I. 2 at 8.) Plaintiff maintains the IRS: (1) performed a cursory review in making its decision; (2) did not hold a personal conference as he requested; (3) failed to communicate with him in any personal or meaningful manner; (4) failed to comply with its own guidelines; and (5) has mistreated him. Plaintiff seeks judgment for $97, 000, including $22, 270 in non-refunded deposits and reimbursement for costs of $74, 730.
II. LEGAL STANDARDS
The court must accept all factual allegations in a complaint as true and consider them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (citations omitted).
FED. R. Civ. P. 12(b)(6) governs a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the sufficiency of the complaint, and does not resolve disputed facts or decide the merits of the case. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotations and citations omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) ("[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder.").
A motion to dismiss may be granted only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (citing Burlington, 114 F.3d at 1420). While the court draws all reasonable factual inferences in the light most favorable to a plaintiff, it rejects unsupported allegations, "bald assertions, " and "legal conclusions." See, e.g., Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citations omitted). To survive a motion to dismiss, a plaintiff's factual allegations must be sufficient to "raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555 (citations omitted); see also Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (citing Twombly, 550 U.S. at 555).
When jurisdiction is challenged under FED. R. CIV. P. 12(b)(1), the party asserting subject matter jurisdiction has the burden of proving its existence. See Carpet Group lnt'l. v. Oriental Rug Importers Ass'n., Inc., 227 F.3d 62, 69 (3d Cir. 2000). Under FED. R. Civ. P. 12(b)(1), the court's jurisdiction may be challenged either facially, that is, based on the legal sufficiency of the claim, or factually, based on the sufficiency of jurisdictional facts. 2 MOORE'S FEDERAL PRACTICE§ 12.30 (3d ed. 1997). Where there is a facial attack on jurisdiction, the court must accept as true the allegations contained in the complaint. Dismissal for a facial challenge to jurisdiction is "proper only when the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or... is wholly insubstantial and frivolous."' Kehr Packages, Inc. v. Fide/cor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
Where there is a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims." ...