FITZSIMONS v. USA

Filing 10

UNPUBLISHED OPINION and ORDER granting 5 Motion to Dismiss under Rule 12(b)(6). The Clerk is directed to enter judgment. Signed by Judge Francis M. Allegra. (dls) Copy to parties.

ORICIINAt
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No. l3-2787
This Opinion Will Not Be Published in the U.S. Court of Federal Claims Reporter
Because It Does Not Add Significantly to the Body of Law.

(Filed: November

RALPH A. FITZSIMONS.pTo

18, 2013)

se,

Plaintiff,

FILED
NOv

18

2013

U.S, CUURT OF
FEDERAL CLAIMS

V.

THE UNITED STATES,
Defendant.

OPINION and ORDER
In this tax refund suit, plaintiff claims that he attempted to file a tax retum for his 2007
taxable year on April 1 8, 201 I . That retum, however, was not signed and on or about April 22,
201l, was retumed to plaintiff by the Intemal Revenue Service (IRS). On April 18,2012,
plaintiff filed a signed retum for his 2007 taxable year. On June 1 1, 2012, rhe IRS denied
plaintiff s claim for refund. On April 22,2013, plaintiff filed his refund suit in this court. On
June 20, 2013, defendant filed a motion to dismiss plaintiff s complaint under RCFC I 2(bX I )
and 12(b)(6). Briefing on that motion has been completed. Oral argument is deemed
unnecessary.
Deciding a motion to dismiss "starts with the complaint, which must be well-pleaded in
that it must state the necessary elements of the plaintiff s claim, independent ofany defense that
may be interposed;' Holley v. United States, 124 F .3d 1462, 1465 (Fed. Cir. 1997); see olso Bell
Atl, Corp. v. Twombly,550 U.S. 544,554-55 (2007). To survive a motion to dismiss for failure
to state a claim under RCI]C 12(b)(6), the complaint must have sufficient "facial plausibility" to
"allow[ ] the court to draw the reasonable inference that the defendant is liable." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); see also Klamath Tribe Claims Comm. v. United States,97 Fed.
Cl.203,208 (20lr1), aff'd,2013 WL 4494383 (Fed. Cir. Aug. 23,2013). The plaintiffs factual
allegations must "raise a right to relief above the speculative level" and cross "the line from
conceivable to plausible." Twombly,5 50 U.S. at 555, 570; see also Dobyns v. United States,9l
Fed. CI.412, 422-28 (2010) (examining this pleading standard). Nevertheless, the Federal
Circuit has reilerated that "[i]n ruling on a i2(b)(6) motion to dismiss, the court must accept as
true the complaint's undisputed factual allegations and should construe them in a light most

favorabletotheplaintiff." cambridgev.[Jnitedstates,558F.3d1331, 1335(Fed.Cir.2009);

Guamv. (/nited states,578 F.3d 1318, 1326 (Fed. Cir. 2009), cert. denied, 130
S. Cr. 3468 (2010); Petro-Hunt, LLC v. United States,90 Fed. Cl. 51, 68 (2009).

see also Bank of

Mr. Fitzsimons's refund suit fails because his taxes were deemed paid more than three
years prior to the filing ofhis refund request. Sections 6511(a) and 6511(b) ofthe Code (26
U.S.C.) require that a taxpayer bring a refund claim within thee years of filing a retum,
regardless of the retum's actual due date. When Mr. Fitzsimons filed his 2007 retum in2012,he
ac-omplished this step; that return also constituted a claim for refund of the taxes paid in 2007.
However, section 6511(b)(2) of the Code limits the refund available to Mr. Fitzsimons to those
paid in the 3-year period immediately preceding the filing of his retum. See United States v'
'Brockcmp,519
U.S. 347 ,348 (1997); Comm'r of Internal Revenue v. Lun$',516 U'S' 235,240
(1996). However, Mr. Fitzsimons payments were deemed to have occurred on the due date for
filing his 2007 retum - April 18,2008. His claim for refund was filed nearly four year later. As
a refund suit may not be maintained where no refund is due, plaintifls suit must be dismissed for
failure to state aclaimunderRCFC 12(b)(6). Boeriv. United States,T24 F.3d 1367, 1369-70
(Fed. Cir. 2013); Murdock v. United States,103 Fed. Cl. 389, 393 (2012); see also Tiernan v'
United Stqtes,20l3, WL 5977141, at *4 (Fed. Cl. Nov. 12,2013).'
Based on the foregoing, the court hereby GRANTS defendant's motion to dismiss under
RCFC 12(bX6). The Clerk is hereby ordered to dismiss the complaint, with prejudice. No costs.

IT IS SO ORDERED.

While plaintiff claims that his retum for 2007 was filed in 201 1' that retum was
unsigned and constituted neither a valid retum nor a valid claim for refund. See 26 U.S.C
606(a); Treas. Reg. $ 1.6061-1; see also Lucas v .Pilliod Lumber Co.,28IU'S'245'248
0%d); Bruner r. Eoirr,506 F.3d 1021, 1027 (101h Cir ' 200':.); Selgas v. Comm'r of Internal
Revenue. 47 5 F .3d 697 .700-01 (5'" Cir. 2007).

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