TIMOTHY HOGAN, Magistrate Judge
This matter is before the Court on Defendant United States of America's Motion to Dismiss (Doc. 11). Plaintiff's Motion to Dismiss (Doc. 12), and Defendant's Reply thereto (Doc. 13).
Plaintiff has improperly named the United States Department of Treasury — Internal Revenue Service as a defendant. The IRS is not an entity capable of being sued. See Purk v. United States, 747 F.Supp. 1243, 1247 (S.D. Ohio 1989) (claims against IRS are essentially against the United States). Likewise, an executive department of the United States or one of its agencies may only be sued in its own name if the authority to be sued has been expressly conferred by Congress. See Blasckmar v. Guerre, 342 U.S. 512, 514-15 (1952). Congress has not made such an authorization with respect to the Department of Treasury. See Deleeuw v. Internal Revenue Service, 681 F.Supp. 402, 404 (E.D. Mich. 1987). Accordingly, we find that the United States is the proper party defendant.
While entitled "Plaintiff's Motion to Dismiss," Plaintiff's pleading is actually a Memorandum in Opposition to Defendant's Motion to Dismiss. The accompanying certificate of service indicates that Plaintiff's motion is actually "Plaintiff's Response to United States' Motion to Dismiss." As such, Plaintiff's motion shall be construed as a Memorandum in Opposition to Defendant's Motion to Dismiss.
Pro se Plaintiff filed this action seeking to enjoin the collection efforts by the IRS. Plaintiff seeks to "(stop) [the] `IRS' from illegally confiscating/levy my Social Security Benefits and/or Employment wages (based on erroneous information) without a Court Hearing on all the facts." (Doc. 2 at p. 5, #1). Plaintiff also asserts a slavery reparations claim against the IRS seeking a refund of money owed to members of his family which Plaintiff seeks to collect as a descendant. (Id. at #2).
Defendant moves the Court to dismiss Plaintiff's action for two reasons. First, Defendant claims that the Court lacks jurisdiction over Plaintiff's request for injunctive relief because the Court has not waived its sovereign immunity and the claims are barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a). Second, Defendant argues that the Court lacks subject matter jurisdiction because Plaintiff's claims are within the exclusive jurisdiction of the Tax Court.
Defendant's Motion to Dismiss Should Be Granted
Under a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, defendants can attack the complaint's jurisdictional allegations even though they are formally sufficient. Baker v. Siemens Energy and Automation, Inc., 838 F.Supp. 1227, 1229 (S.D. Ohio 1993) (Spiegel, J.). When the Court reviews a factual attack on subject matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). The Court may rely on affidavits or any other evidence properly before it and has wide latitude to collect evidence to determine the issue of subject matter jurisdiction. Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir. 1986). The Court is entitled to resolve factual disputes and is free to weigh the affidavits, documents and other evidentiary matters presented and satisfy itself as to its power to hear the case. Ritchie, 15 F.3d at 598. The Court must consider factual issues in a manner that is fair to the nonmoving party. Rogers, 798 F.2d at 915. Plaintiff must demonstrate jurisdiction in order to survive the motion. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir. 1990). "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3).
Plaintiff argues that the Court has jurisdiction to hear his claims, but provides no authority for his position. Indeed, Plaintiff's memorandum fails to counter any legal argument made by Defendant but, rather, merely reiterates the arguments and allegations which are contained in his Complaint, namely that taxes collected from him by the IRS were incorrect and that he is owed slavery reparations from the Defendant.
The Tax Court has exclusive jurisdiction over petitions contesting a determination by the IRS Appeals Office in a collection matter that concerns income taxes, estate taxes and other taxes over which the Tax Court generally has jurisdiction. 26 U.S.C. § 6330(d). The present case involves a determination by the IRS Appeals Office that Plaintiff owes income taxes for the years 1989 through 1993. Defendant argues that Plaintiff's appeal of such was untimely filed in the improper court. The timeliness of Plaintiff's appeal is irrelevant because the underlying tax liability is the determining factor for establishing jurisdiction in the Tax Court rather than this Court. Goza v. Commissioner, 114 T.C. 176, 182 (2000). 26 U.S.C. § 6330(d) constitutes a limited waiver of sovereign immunity and provides the means by which Plaintiff can challenge the IRS's determination of tax liability for 1990. Plaintiff has failed to demonstrate that his claims fall within one of the limited exceptions that confers jurisdiction in the federal district courts. See 26 U.S.C. § 6330(d)(1)(B). Thus, the United States has not consented to be sued in this Court, and consequently, Plaintiff cannot maintain his claims.
Plaintiff's claim seeks to enjoin collection by the IRS. In this respect, Plaintiff's complaint must be dismissed. The Anti-Injunction Act expressly prohibits a taxpayer from bringing suit in order to restrain the assessment or collection of a tax. 26 U.S.C. § 7421(a). The act was passed to ensure that once a tax has been assessed, the tax can be collected without judicial intervention. See Enochs v. Williams Packaging Navigating, Co. Inc., 370 U.S. 1, 7 (1962). The taxpayer's only recourse in this situation is seek a refund for any contested taxes after they have been payed in full. See Bob Jones University v. Simon, 416 U.S. 725, 736-37 (1974). There are, however, two exceptions to this general rule. An injunction may be maintained when the taxpayer can show that the government cannot, under any circumstances, prevail on the merits of the tax claim, and, when there is a threat of irreparable harm to the taxpayer for which the taxpayer has no legal remedy. See Enochs, 370 U.S. at 7. Neither of these conditions are present in the Plaintiff's case. He has not presented any facts demonstrating that the government cannot support its assessment against him. Furthermore, he has a legal remedy available through a claim for refund after collection of the taxes. Therefore, Plaintiff cannot support a claim for injunctive relief against the Defendant.
Plaintiff also seeks a refund of slavery reparations. Aside from the fact that the Internal Revenue Code does not provide any type of tax refund based upon slavery reparations, see Taylor v. United States, 57 Fed. Cl. 264, 266 (2003); Wilkins v. Commissioner, 120 T.C. 109 (2003), Plaintiff has failed to file any claim for refund with the Internal Revenue Service prior to bringing this action. With respect to suits for tax refunds, the United States has consented to be sued only where the taxpayer follows the conditions set forth in Section 7422 of the Internal Revenue Code. Section 7422(a) of the Internal Revenue Code provides, in pertinent part:
No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.
26 U.S.C. § 7422(a). The filing of a timely claim for refund is a jurisdictional prerequisite to the filing of a suit for refund.
See United States v. Felt Tarrant Mfg. Co., 283 U.S. 269, 272 (1931);
see also Firsdon v. United States, 95 F.3d 444, 446 (6
th Cir. 1996),
cert. denied 117 S.Ct. 957. Therefore, even assuming Plaintiff was entitled to a refund on the basis of slavery reparations, this Court is without jurisdiction over the subject matter as the United States has not waived its sovereign immunity.
Finally, Defendant argues that, to the extent Plaintiff is seeking compensatory relief, Plaintiff failed to pursue such claims within two years of their accrual and therefore, such relief is outside the FTCA's limited waiver fo sovereign immunity. Moreover, the Court is without subject matter jurisdiction over any claim for tort damages as Plaintiff has failed to file an administrative tort claim with the appropriate federal agency prior to commencing suit against the United States pursuant to 28 U.S.C. § 2675. Again, the United States, as sovereign, is immune from suit unless it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941); Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Moreover, the United States may define the terms and conditions upon which it may be sued. Block v. N.D. ex. rel. Bd. of Univ. Sch. Lands, 461 U.S. 273, 287 (1983); Honda v. Clark, 386 U.S. 484, 501 (1967). The FTCA is the exclusive waiver of sovereign immunity for tort actions against the United States. See 28 U.S.C. § 2679(a), (b). Thus, the requirements of the FTCA are to be strictly enforced and construed. Pascale v. United States, 998 F.2d 186 (3rd Cir. 1993). 28 U.S.C. § 1346(b) states that jurisdiction is conferred on the district courts over "civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945," subject to the conditions set forth in the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671- 2680. The FTCA precludes a law suit against the United States for personal injury or loss of property resulting from a negligent or wrongful act unless and until the claimant has first filed a claim with the appropriate federal agency. 28 U.S.C. § 2675. Having once filed a claim, the claimant may not seek recourse in Court until either the claim has been denied or six months pass without an agency decision on the matter. See 28 U.S.C., Section 2675(a). Moreover, 28 U.S.C. § 2401(b) provides that a tort claim must be presented within two years after the claim accrues or it "shall be forever barred." Plaintiff did not bring such claims within two years of their accrual. Likewise, there is no evidence that Plaintiff filed an administrative tort claim prior to initiating this lawsuit. Thus, we find that Plaintiff has failed to demonstrate that he has fulfilled the jurisdictional prerequisites to the filing of any claim for money damages against the Defendant. See McNeil v. United States, 508 U.S. 106, 113 (1993); In re Agent Orange Product Liability Litigation, 818 F.2d 194, 196 (2nd Cir. 1987).
For the reasons stated above, we find that the Court lacks jurisdiction over this matter and this action should be dismissed. See Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 510 (2nd Cir. 1994); Rogers v. United States, 675 F.2d 123, 124 (6th Cir. 1982).
IT IS THEREFORE RECOMMENDED THAT:
The United States' Motion to Dismiss (Doc. 11) should be GRANTED and this case should be TERMINATED on the Court's Docket.