1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 AUDREY MAYS, CASE NO. 1:19-CV-0344 AWI SAB

7 Plaintiff

ORDER VACATING HEARING,

8 v. ORDER SUBSTITUTING PARTY, AND

ORDER ON DEFENDANT’S RULE

9 INTERNAL REVENUE SERVICE, 12(b)(1) MOTION TO DISMISS

10 Defendant (Doc. No. 18) 11 12 13 This is a tax dispute between pro se Plaintiff Audrey Mays and Defendant Internal 14 Revenue Service (“IRS”) for a tax refund.1 Currently before the Court is a Rule 12(b)(1) motion 15 to dismiss. Hearing on this motion is currently set for November 25, 2019, at 1:30 p.m. Plaintiff 16 has not filed an opposition to the motion. After review, the Court has determined that the motion 17 is suitable for decision without oral argument. See Local Rule 230(g). The Court will vacate the 18 November 25, 2019, hearing and issue this order, which resolves the pending Rule 12(b)(1) 19 motion to dismiss. 20 21 BACKGROUND 22 From the Second Amended Complaint, at an unknown time, Plaintiff received a notice 23 from the California Franchise Tax Board that stated she needed to file a tax return for the year 24 2012. Plaintiff went to her CPA, who appears to have determined that Plaintiff owed the State of 25 California taxes. However, the CPA determined that Plaintiff was owed a refund of $6,112 from 26

27 1 The Department of the Treasury was a defendant in previous complaints, but has been omitted from the operative Second Amended Complaint. Although the Department is no longer a defendant by virtue of this omission, see Hal 28 Roach Studios, Inc., 896 F.2d 1542, 1546 (9th Cir. 1989); Ramos v. Chase Home Fin., 810 F.Supp.2d 1125, 1145 (D. 1 the United States. Plaintiff was told, either by her CPA or the IRS, that due to the timeframe 2 involved, she would not receive the refund. Plaintiff filed a claim and an appeal with the IRS for 3 the $6,000 refund, but her claim was denied. 4 5 LEGAL FRAMWORK 6 Federal Rules of Civil Procedure 12(b)(1)allows for a motion to dismiss based on lack of 7 subject matter jurisdiction. See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental precept that federal 8 courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 9 374 (1978); K2 Am. Corp. v. Roland Oil & Gas, 653 F.3d 1024, 1027 (9th Cir. 2011). Limits 10 upon federal jurisdiction must not be disregarded or evaded. Owen Equip., 437 U.S. 365, 374 11 (1978); Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984). “It is presumed that a cause lies outside 12 this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting 13 jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); K2 Am., 653 F.3d 14 at 1027. Rule 12(b)(1) motions may be either facial, where the inquiry is confined to the 15 allegations in the complaint, or factual, where the court is permitted to look beyond the complaint 16 to extrinsic evidence. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Safe Air For 17 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a defendant challenges 18 jurisdiction “facially,” all material allegations in the complaint are assumed true, and the court 19 determines whether the factual allegations are sufficient to invoke the court’s subject matter 20 jurisdiction. See Leite, 392 F.3d at 362; Meyer, 373 F.3d at 1039. When a defendant makes a 21 factual challenge “by presenting affidavits or other evidence properly brought before the court, the 22 party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden 23 of establishing subject matter jurisdiction.” Meyer, 373 F.3d at 1039; see Leite, 749 F.3d at 1121. 24 The court need not presume the truthfulness of the plaintiff’s allegations under a factual attack. 25 Wood v. City of San Diego, 678 F.3d 1075, 1083 n.2 (9th Cir. 2011). The plaintiff must show by 26 a preponderance of the evidence each requirement for subject-matter jurisdiction, and as long as 27 the dispute is not intertwined an element of the plaintiff’s cause of action, the court may resolve 28 any factual disputes itself. Leite, 749 F.3d at 1121. 1 DEFENDANT’S MOTION 2 Defendant’ Argument 3 Defendant argues that because it is an agency of the United States, and because congress 4 has not authorized suit against the IRS, the United States should be substituted as a party in place 5 of the IRS. 6 Apart from substitution, Defendant argues that it is making a facial and factual attack 7 against the SAC. Plaintiff’s refund suit is untimely under 26 U.S.C. § 6511(b), which limits 8 refunds to amounts paid within 3 years of filing the claim for a refund. Plaintiff filed her request 9 for a refund on January 11, 2017. Under § 6511(b), Plaintiff could seek a refund on amounts paid 10 between January 11, 2014 and January 11, 2017. However, per Plaintiff’s Form 4340, the only 11 amount collected by the IRS relating to Plaintiff’s 2012 tax liability was collected on April 15, 12 2013. Thus, under § 6511(b), Plaintiff’s attempt to obtain a refund is untimely and dismissal is 13 appropriate. 14 Plaintiff’s Opposition 15 Plaintiff has filed no opposition. 16 Discussion 17 Initially, it is necessary to substitute parties. In a suit for a tax refund under 26 U.S.C. § 18 7422(a), the proper defendant is the United States, not the IRS or a governmental employee or 19 officer. See 26 U.S.C. § 7422(f)(1); Venegas v. IRS, 2018 U.S. Dist. LEXIS, 117154, *2 (D. 20 Mass. June 14, 2018). West v. United States, 2007 U.S. Dist. LEXIS 11617, *1 n.1 (W.D. Was. 21 Feb. 20, 2007). Therefore, the Court will substitute the United States as the only defendant in this 22 matter in place of the IRS. See 26 U.S.C. § 7422(f)(2); Venegas, 2018 U.S. Dist. LEXIS 117154 23 at *2; West, 2007 U.S. Dist. LEXIS 11617 at *1 n.1. 24 Under 26 U.S.C. § 7422(a), no suit for a tax refund may proceed “until a claim for refund 25 or credit has been duly filed with the Secretary . . . .” 26 U.S.C. § 7422(a) (emphasis added). In 26 order to be considered “duly filed,” a claim for a tax refund “must be filed in accordance with, 27 inter alia, the provisions of [26 U.S.C.] § 6511.” Imperial Plan, Inc. v. United States, 95 F.3d 25, 28 26 (9th Cir. 1996). 26 U.S.C. § 6511(b) contains “lookback” provisions that “effectively eliminate 1 any danger of taxpayers recovering on stale claim.” Omohundro v. United States, 300 F.3d 1065, 2 1069 (9th Cir. 2002). In relevant part, § 6511(b) limits a claim for a refund to amounts paid 3 within 3 years of the date of filing of the refund claim. See 26 U.S.C. § 6511(b)(2)(A); Reynoso 4 v. United States, 692 F.3d 973, 978 (9th Cir. 2012); Ehle v. United States, 720 F.2d 1096, 1096 5 (9th Cir. 1983). Section 6511(b)(2)(A)’s lookback period is “jurisdictional in nature and cannot 6 be waived.” Reynoso, 692 F.3d at 982; Zeier v. United States, 80 F.3d 1360, 1364 (9th Cir. 1996). 7 Further, the limitation periods of § 6511 are not subject to equitable tolling. United States v. 8 Brockamp, 519 U.S. 347, 354 (1997). 9 Here, the United States has submitted a copy of an IRS Form 4340 (“Certificate of 10 Assessments, Payments, and Other Specified Matters”) that indicates that Plaintiff paid her 2012 11 taxes in April 15, 2013. See Doc. No. 18-2. Particularly in the absence of an objection or 12 contrary evidence, Form 4340’s are admissible and may establish any fact that appears therein. 13 See Hughes v. United States, 953 F.2d 531, 539-40 (9th Cir. 1992). In the absence of an 14 opposition, the Court concludes that all payments relating to the 2012 tax year were made by 15 Plaintiff in April 2013. 16 Applying § 6511(b)(2)(A) to this case, the Court agrees with the United States that 17 Plaintiff’s claim for refund is untimely. Plaintiff does not challenge the fact that she submitted her 18 claim for a refund in January 2017. Applying the three year lookback of § 6511(b)(2)(A), Plaintiff 19 could make a claim for a refund based on payments made as far back as January 2014. However, 20 because Plaintiff’s payments relating to her 2012 tax assessment were made in April 2013, 21 Plaintiff’s request was untimely by approximately nine months. Because the lookback period of 22 § 6511(b)(2)(A) is jurisdictional, and Plaintiff has not shown that she can meet its requirements, 23 the Court lacks jurisdiction over this matter and must dismiss this case. See Reynoso, 693 F.3d at 24 982; K2 Am., 653 F.3d at 1027. 25 26 ORDER 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. The November 25, 2019 hearing date is VACATED; 1 }2. The United States is SUBSTITUTED as the defendant in this matter in place of the 2 Internal Revenue Service and the Department of the Treasury; 3 |3. The Clerk shall TERMINATE the Internal Revenue Service and the Department of the 4 Treasury; 5 The United States’ Rule 12(b)(1) motion to dismiss (Doc. No. 18) is GRANTED; and 6 |5. The Clerk shall CLOSE this case. 7 g IT IS SO ORDERED. □□ g Dated: _ November 18, 2019 Z : Cb □□ — SENIOR DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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