EBEYER et al v. USA

Filing 23

ORDER denying 19 Motion to Dismiss - Rule 12(b)(1. Defendant shall FILE a Motion for Summary Judgment by 9/4/2013; Defendant shall FILE Defendant's Proposed Findings of Uncontroverted Fact by 9/4/2013; Plaintiffs s hall RESPOND to Defendant's Motion for Summary Judgment by 10/2/2013; and Plaintiffs shall file Plaintiffs' Response to Defendant's Proposed Findings of Uncontroverted Fact by 10/2/2013. All further deadlines shall be set in accordance with the court's rules. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.

In the United States Court of Federal Claims
No. 12-181 T
(Filed August 7, 2013)
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DONNA EBEYER AND GLEN
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EBEYER,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER
Now pending before the court is defendant’s Motion to Dismiss plaintiffs’
tax refund claim pursuant to Rule 12(b)(1) of the Rules of the United States Court
of Federal Claims (RCFC). Defendant’s motion has been fully briefed and is ripe
for a decision by the court. For the reasons specified below, the court denies
defendant’s motion to dismiss and will allow the government an opportunity to
advance its contentions under 26 U.S.C. § 6511(b)(2)(A) (2006) by filing a motion
for summary judgment under RCFC 56.
In its motion, defendant contends that plaintiffs’ refund claim is barred
under section 6511(b)(2)(A), and, therefore, the court lacks subject matter
jurisdiction over plaintiffs’ claim. Section 6511(b)(2)(A) limits the Ebeyers’
available refund to the portion of their 2006 tax “paid” during the period
“immediately preceding the filing of the claim . . . equal to 3 years plus the period
of any extension of time for filing the return.” On their 2006 federal income tax
return, plaintiffs reported $12,298 of income tax withholdings for tax year 2006.
Def.’s Mot. App. E, Ex. 1 at E5, line 64. Plaintiffs are deemed to have “paid”
these withholdings on April 15, 2007, i.e., “the 15th day of the fourth month
following the close of [their 2006] taxable year.” 26 U.S.C. § 6513(b)(1) (2006)

(“Any tax actually deducted and withheld at the source during any calendar year . .
. shall, in respect of the recipient of the income, be deemed to have been paid by
him on the 15th day of the fourth month following the close of his taxable year . . .
.”); Baral v. United States, 528 U.S. 431, 434-36 (2000) (holding, inter alia, that
remittance by a taxpayer’s employer of withholding tax is deemed “paid,” for the
purposes of section 6511(b)(2)(A), on the due date of the taxpayer’s income tax
return). However, a three-year look-back period under section 6511(b)(2)(A),
running backward from the filing of plaintiffs’ refund claim on October 14, 2010,
only extended to October 14, 2007. It is undisputed that section 6511(b)(2)(A)
bars the Ebeyers’ refund claim unless they were granted at least a six-month
extension of time to file their 2006 federal income tax return. The parties’ sole
dispute, therefore, is whether plaintiffs requested and were granted such an
extension.
In its motion, defendant urges the court to hold that section 6511(b)(2)(A)
presents a jurisdictional bar to recovery, and that a plaintiff whose recovery is
barred by section 6511(b)(2)(A) has failed to establish subject matter jurisdiction
for his or her suit. Def.’s Mot. at 3-12. Plaintiffs apparently do not contest the
government’s position in this regard. Pl.’s Resp. at 2 (“For the purposes of this
motion, the plaintiffs have no problem with the characterization of [§ 6511(b)] as
jurisdictional.”). In addressing this issue, the court is mindful of the Federal
Circuit’s recent admonition that “[m]astering the distinction between a dismissal
for lack of jurisdiction and a dismissal on the merits is not merely an intellectual
exercise without practical utility.” Engage Learning, Inc. v. Salazar, 660 F.3d
1346, 1355 (Fed. Cir. 2011) (citation and internal quotation marks omitted). This
is because “a dismissal on the merits usually carries res judicata effect whereas a
dismissal for lack of jurisdiction typically does not,” and, further, “a court’s
characterization of a decision as jurisdictional rather than as on the merits affects
its treatment of disputed facts.” Id. For example, unlike motions to dismiss for
failure to state a claim or motions for summary judgment, motions to dismiss for
want of subject matter jurisdiction permit courts to “inquire into jurisdictional facts
that are disputed” and resolve such disputes through findings of fact. Rocovich v.
United States, 933 F.2d 991, 993 (Fed. Cir. 1991); see also Engage Learning, 660
F.3d at 1355 (“[D]isputed facts outside the pleadings are subject to the fact finding
of the court.”).
As defendant has noted, in the past this court has issued divergent opinions
regarding the issue of whether the look-back period limitation set forth in section
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6511(b)(2)(A) is jurisdictional. Several decisions of this court have held that a
plaintiff whose recovery is barred by section 6511(b)(2)(A) has failed to establish
subject matter jurisdiction for his or her suit. E.g., Plati v. United States, 99 Fed.
Cl. 634, 641 (2011) (citing United States v. Clintwood Elkhorn Mining Co., 553
U.S. 1 (2008)); Doyle v. United States, 88 Fed. Cl. 314, 322 (2009) (citing Dumont
v. United States, 345 F. App’x 586 (Fed. Cir. 2009)); Musungayi v. United States,
86 Fed. Cl. 121, 125 (2009). Other decisions of this court, however, suggest that a
complaint should be dismissed for failure to state a claim when recovery is barred
by section 6511(b)(2)(A). E.g., Murdock v. United States, 103 Fed. Cl. 389, 39294 (2012); Wertz v. United States, 51 Fed. Cl. 443, 447 (2002) (citing McGregor v.
United States, 225 Ct. Cl. 566, 567 (1980), and Rinaldi v. United States, 30 Fed.
Cl. 164, 165 n.2 (1993)).
In a non-precedential, per curiam opinion issued in 2009, the Federal Circuit
stated that section 6511(b)(2)(A) is jurisdictional. See Dumont, 345 F. App’x at
590 (“Under this statutory scheme, the provisions in issue in this case – §§
6511(a), 6511(b)(2), and 6532(a)(1) – are all jurisdictional in nature, and a suit that
fails to satisfy any of these provisions must be dismissed for lack of subject matter
jurisdiction.” (citing Comm’r v. Lundy, 516 U.S. 235, 240 (1996), and In re LongDistance Tel. Serv. Fed. Excise Tax Refund Litig., 539 F. Supp. 2d 281, 296
(D.D.C. 2008))). However, on July 31, 2013, the Federal Circuit issued a
precedential decision affirming the RCFC 12(b)(6) dismissal of a tax refund claim
as untimely under section 6511(b)(2)(A). See Boeri v. United States, No. 20125102, 2013 WL 3927700, at *1 (Fed. Cir. July 31, 2013) (approving this court’s
reliance on Murdock for the proposition that “the look-back provision [in
section 6511(b)(2)(A)] is not ‘jurisdictional in nature’ and did ‘not preclude the
court from hearing [Mr. Boeri’s] claim’” (quoting Boeri v. United States, No. 11590T, 2012 WL 643901, at *3 (Fed. Cl. Feb. 23, 2012))).1
As the Federal Circuit has reminded this court, the Court of Federal Claims
“may not deviate from the precedent of the United States Court of Appeals for the
Federal Circuit any more than the Federal Circuit can deviate from the precedent of
the United States Supreme Court.” Crowley v. United States, 398 F.3d 1329, 1335
(Fed. Cir. 2005). Therefore, based on this binding precedent, the court must
conclude that section 6511(b)(2)(A) does not present a jurisdictional bar to
1

/ On August 1, 2013, defendant filed a Notice of Subsequent Authority informing the
court of the Federal Circuit’s decision in Boeri.

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recovery, and that defendant’s motion is properly viewed as a motion to dismiss
for failure to state a claim.
In this case, defendant filed an answer to plaintiff’s complaint on July 2,
2012 – more than one year ago. Defendant waited to file its motion to dismiss
under RCFC 12(b)(1) until after filing its answer and conducting discovery
regarding plaintiffs’ allegation that they requested and were granted an extension
of time to file their 2006 federal income tax return. Def.’s Mot. at 24.
Consequently, any motion to dismiss for failure to state a claim at this juncture
would have to be construed as a motion for judgment on the pleadings under
RCFC 12(c). See RCFC 12(c) (“After the pleadings are closed – but early enough
not to delay trial – a party may move for judgment on the pleadings.”); Peterson v.
United States, 68 Fed. Cl. 773, 776 (2005) (“Courts have routinely construed a
motion to dismiss for failure to state a claim filed after the answer as a motion for
judgment on the pleadings.” (citations omitted)). The legal standard applied to
evaluate a motion for judgment on the pleadings under RCFC 12(c) is the same as
that for a motion to dismiss under RCFC 12(b)(6). See Zhang v. United States, 640
F.3d 1358, 1364 (Fed. Cir. 2011).
Unfortunately, the court is unable to dispose of defendant’s motion even
under RCFC 12(c). Defendant has attached numerous exhibits to its motion and
reply in an effort to rebut plaintiffs’ contention that they requested and were
granted an extension. Both parties rely extensively on these exhibits in support of
their respective contentions, and the court cannot consider the merits of these
arguments without considering the documents themselves. These materials,
presented outside of the pleadings, thus would require a conversion of defendant’s
motion to a motion for summary judgment. See RCFC 12(d) (“If, on a motion
under RCFC 12(b)(6) or 12(c), matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one for summary
judgment under RCFC 56.”); Advanced Cardiovascular Sys., Inc. v. Scimed Life
Sys., Inc., 988 F.2d 1157, 1164 (Fed. Cir. 1993) (vacating a dismissal pursuant to
Fed. R. Civ. P. 12(b)(6) where the trial court had considered materials outside the
pleadings, because in those circumstances “the rules governing summary judgment
must apply”).
In its Notice of Subsequent Authority filed on August 1, 2013, defendant
asks the court to treat defendant’s motion as a motion for summary judgment under
RCFC 56 if the court determines that Boeri forecloses the government’s argument
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that section 6511(b)(2)(A) presents a jurisdictional bar to recovery. Although the
court, for the reasons specified above, agrees that the parties’ section
6511(b)(2)(A) contentions must be resolved through a motion for summary
judgment, the court is unable to treat defendant’s RCFC 12(b)(1) motion to dismiss
as a RCFC 56 motion for summary judgment because plaintiff has not yet been
afforded a “reasonable opportunity to present all the material that is pertinent to the
[summary judgment] motion.” RCFC 12(d).
The court must provide the parties notice and an opportunity to litigate
defendant’s motion through the procedures afforded by RCFC 56. See Easter v.
United States, 575 F.3d 1332, 1335 (Fed. Cir. 2009) (“Before the court may
convert a motion for judgment on the pleadings into a motion for summary
judgment, the court must ordinarily provide notice of its intention to do so.”);
Advanced Cardiovascular, 988 F.2d at 1164 (“[O]n motion to dismiss on the
complainant’s pleading it is improper for the court to decide the case on facts not
pleaded by the complainant, unless the complainant had notice thereof and the
opportunity to proceed in accordance with the rules of summary judgment.”
(citations omitted)); Thoen v. United States, 765 F.2d 1110, 1113-14 (Fed. Cir.
1985) (“[T]he Claims Court Rules contemplate some notice to enable the opposing
party to present arguments against the entry of summary judgment . . . .”). For
these reasons, the court denies defendant’s motion to dismiss and will allow the
government an opportunity to advance its section 6511(b)(2)(A) contentions by
filing a motion for summary judgment under RCFC 56.
Accordingly, it is hereby ORDERED that:
(1)

Defendant’s Motion to Dismiss the Complaint for Lack of SubjectMatter Jurisdiction, filed on April 26, 2013, is DENIED;

(2)

Defendant shall FILE a Motion for Summary Judgment on or
before September 4, 2013;

(3)

Defendant shall FILE Proposed Findings of Uncontroverted Fact
on or before September 4, 2013. The Proposed Findings of
Uncontroverted Fact shall contain:
(A)

concise, separately numbered paragraphs setting forth all
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of the material facts upon which defendant bases its
motion and as to which defendant believes there is no
genuine dispute; and
(B)

citations to plaintiffs’ pleadings or to documentary
evidence, such as affidavits or exhibits, filed with the
motion or otherwise part of the record before the court;

(3)

Plaintiffs shall RESPOND to defendant’s Motion for Summary
Judgment on or before October 2, 2013;

(4)

Plaintiffs shall FILE a Response to Defendant’s Proposed Findings
of Uncontroverted Fact as a separate docket entry on or before
October 2, 2013. Plaintiffs’ response shall contain, immediately
below each finding:
(A)

a statement indicating whether plaintiffs agree or
disagree with the finding as written;

(B)

the basis for any objection to the finding, including
citations to defendant’s pleadings or to documentary
evidence, such as affidavits or exhibits, filed with the
response or otherwise part of the record before the court;

(C)

a proposed revision of the finding; and

(D)

any proposed findings of uncontroverted fact as to any
relevant matters not covered by defendant, including
citations to defendant’s pleadings or to documentary
evidence, such as affidavits or exhibits, filed with the
response or otherwise part of the record before the court.

/s/Lynn J. Bush
LYNN J. BUSH
Judge

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