United States District Court, D. New Jersey
Rikin Patel, pro se, brings this Complaint
("Cplt.", DE 1) against the Internal Revenue
Service ("IRS"). He seeks a refund in the amount of $4,
171 for federal income tax withholding allegedly overpaid for
the 2011 tax year. The IRS has moved to dismiss the complaint
for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1),
arguing that the plaintiffs refund claim and this action were
filed outside of applicable jurisdictional time limits.
were withheld from Mr. Patel's pay in the year 2011. In
his tax return for the year 2011, he claimed that he overpaid
his 2011 taxes in the amount of $4171.00, and sought a
Patel concededly did not file his 2011 tax return on the
usual due date of April 15, 2012; he filed it on October 8,
2015. The IRS states that the return, when considered as a
refund claim, was filed too late. Mr. Patel claims that he
filed for an extension of time, but the IRS has no record of
December 17, 2015, the IRS issued a Notice of Claim
Disallowance. The Notice informed Mr. Patel that he could
file an administrative appeal within the IRS or file suit in
federal court within two years after the date of the Notice.
The complaint in this action was filed by the clerk on
December 20, 2017, three days past the two-year deadline
stated in the Notice.
12(b)(1), Fed. R. Civ. P., provides for the dismissal of a
complaint for lack of subject matter jurisdiction.
The burden of establishing federal jurisdiction rests with
the party asserting its existence, [citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.
3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).] "Challenges
to subject matter jurisdiction under Rule 12(b)(1) may be
facial or factual." [citing Common Cause of Pa, v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,
188 (3d Cir. 2006)).] A facial attack "concerns 'an
alleged pleading deficiency' whereas a factual attack
concerns 'the actual failure of [a plaintiffs] claims to
comport [factually] with the jurisdictional
prerequisites.'" [citing CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations in
original) (quoting United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
"In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff." [citing Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, "the
court must permit the plaintiff to respond with rebuttal
evidence in support of jurisdiction, and the court then
decides the jurisdictional issue by weighing the evidence. If
there is a dispute of a material fact, the court must conduct
a plenary hearing on the contested issues prior to
determining jurisdiction." [citing McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006)
Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99,
105 (3d Cir. 2015) (footnotes omitted; case citations in
footnotes inserted in text).
refund suit, like this one, is properly brought against the
United States under 28 U.S.C. § 1346(a)(1). The court
has may entertain such an action, however, only to the extent
and under the conditions that the United States has waived
its sovereign immunity. Such a waiver must be clear, and it
is a prerequisite to this Court's subject-matter
jurisdiction. See Lane v. Pena, 518 U.S. 187, 192
(1996); United States v. Nordic Village, Inc., 503
U.S. 30, 33 (1992); FDCI v. Meyer, 510 U.S. 471, 475
(1994). Here, the United States has placed conditions on its
waiver of sovereign immunity in the form of time limits.
Unless those conditions are satisfied, this action cannot