The opinion of the court was delivered by: FISHER
This is a motion brought by the defendant, United States of America, to dismiss the underlying action as to three named plaintiffs, The Presbyterian Church in Westfield, New Jersey, Muhlenberg Hospital, and Children's Specialized Hospital (the Charities). Also named as plaintiff is Anna D. Harz, the executrix of the estate of Florence A. Dederick (Executrix). Disposition of this motion is without an oral hearing pursuant to Fed.R.Civ.P. 78.
This is an action brought under 28 U.S.C. § 1346(a)(1) for the refund of federal estate taxes alleged to have been illegally or erroneously assessed or collected from the estate of Florence A. Dederick. The government asserts that insofar as 28 U.S.C. § 1346(a)(1), the statute which confers jurisdiction on this court in actions for tax refunds, only authorizes suits by taxpayers, and since the Charities are not taxpayers but merely beneficiaries under the decedent's will, this court lacks jurisdiction to entertain their claims. The Charities contend that the Executrix has been fully discharged by the full performance of her duties as enumerated in a May 16, 1976 settlement agreement which was incorporated into a decree of the Probate Division of the Union County Court in New Jersey. From this they conclude that, pursuant toRev.Rul. 73-366, 1973-2 C.B. 408, they are proper party plaintiffs. For the reasons set forth herein, the Government's motion is granted.
Under 28 U.S.C. § 1346(a)(1) only a taxpayer may bring a suit for the recovery of any Internal Revenue tax alleged to have been erroneously or illegally assessed or collected. Hofheinz v. United States, 511 F.2d 661, 662 (5th Cir. 1975); First National Bank of Emlenton, Pa., v. United States, 265 F.2d 297, 299-300 (3d Cir. 1959). As stated by the Third Circuit, the language of § 1346(a)(1) "(is) reasonably to be read as merely authorizing a taxpayer, or perhaps someone claiming in the interest of a taxpayer, to sue to get back taxes which the taxpayer has wrongfully been required to pay." Id. at 299-300.
The Charities claim thatRev.Rul. 73-366, 1973-2 C.B. 408 authorizes residuary legatees to be proper party plaintiffs in an action seeking a refund of federal estate taxes. However, that revenue ruling is expressly limited only to situations in which the executor has been discharged. By its terms, the ruling requires that any claim for a refund brought by such beneficiaries should be "accompanied by a certified copy of the court order granting the discharge of the executor and a certified copy of the order of distribution."
Thus, I am not satisfied that the Executrix has been discharged. I do not agree with the Charities when they allege that paragraph 7 of the settlement agreement "on its face completely discharges the Executrix." Further, despite the fact that the complaint explicitly alleges the circumstances under which the Charities contend the Executrix was discharged, she is still a named plaintiff therein. At no place in the complaint is her status brought into question.
Accordingly,Rev.Rul. 73-366 is inapplicable to the case at hand. The law is clear that 28 U.S.C. § 1346(a)(1) authorizes refund suits only by taxpayers. To extend this authorization to the Charities under the facts of this case would be to imply improperly a waiver of sovereign immunity. See Phillips v. United States, 346 F.2d 999, 1000 (2d Cir. 1965). Thus, the Government's motion to dismiss the Charities as improper parties is granted. The Government will submit an order within ten days. No costs.
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