Individual Filed Refund Suit Too Early, Court Finds

SOMONA LOFTON,
Plaintiff,
v.
UNITED STATES,
Defendant.

In the United States Court of Federal Claims

ORDER OF DISMISSAL

Plaintiff pro se Somona Lofton filed this calendar year 2021 federal income tax refund case against the United States on September 14, 2022.¹ See ECF No. 1. Plaintiff alleges she filed a 2021 Form 1040-X, Amended U.S. Individual Income Tax Return, on May 18, 2022, claiming a federal income tax refund in the amount of $5,362.² See ECF No. 1 at 2; ECF 1–2 at 20. Plaintiff seeks to challenge the IRS's “refus[al] to process [her] Amended Tax return.” See ECF No. 1 at 2. Plaintiff claims the following relief: “$5,362.00 [t]ax refund amount.” Id. at 3. Pending before the Court is defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). See ECF No. 13. Specifically, defendant asserts plaintiff's complaint was filed prematurely — i.e., before the expiration of the six-month waiting period required under 26 U.S.C. § 6532(a)(1), which allows the IRS time to investigate and process tax refund claims. The Court agrees.

“To maintain a tax refund suit against the United States, taxpayers must first file a refund claim with the [IRS].” Weston v. United States, No. 2022-1179, 2022 WL 1097361, at *1 (Fed. Cir. Apr. 13, 2022) (citing 26 U.S.C. § 7422(a)). In turn, Title 26, United States Code, Section 6532(a) — titled “Suits by taxpayers for refund” — provides in relevant part:

No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time. . . .

26 U.S.C. § 6532(a)(1). The filing of the refund claim begins the six-month clock codified in § 6532(a). Unless the IRS issues a notice of decision during the six-month period, the filer must await the end of the statutory period before filing suit in this Court.

Plaintiff filed this tax refund suit on September 14, 2022; by the Court's calculation: 3 months and 27 days after purportedly filing her 2021 Form 1040-X. In alleging the IRS has not yet processed her refund, plaintiff concedes the IRS did not issue a decision prior to her filing suit. Because the six-month statutory waiting period had not expired at the time plaintiff filed her complaint, this Court lacks jurisdiction to adjudicate this action. See Weston, 2022 WL 1097361, at *1 (“[T]he failure to file a timely complaint under § 6532(a)(1) deprives the [Court of Federal Claims] of subject matter jurisdiction.”) (citing cases); e.g., Gaynor v. United States, 150 Fed. Cl. 519, 538 (2020) (dismissing tax refund claims for lack of jurisdiction because the “requisite waiting period had not yet elapsed” when plaintiff filed the initial complaint).

The irony is not lost on the Court that this Order of Dismissal is being issued on the precise date that Ms. Lofton's statutory six-month waiting period expires. As noted by the government, however, the jurisdictional requirements of § 6532(a) must be satisfied at the time a tax refund suit is filed. See Gaynor, 150 Fed. Cl. at 537–38 (“[O]ur jurisdiction is assessed at the time at which a complaint is filed — not subsequently, after a plaintiff already has filed an action. Concluding otherwise would render the statutory waiting period a dead letter.”). Accordingly, plaintiff's complaint must be dismissed, albeit without prejudice. Indeed, plaintiff may refile her tax refund complaint as early as today, though she could not have so as late as yesterday.

For the reasons set forth above,

No costs.

It is so ORDERED.

Armando O. Bonilla
Judge