LOVETT v. USA
REPORTED OPINION Granting 10 Motion to Dismiss - Rule 12(b)(1). Both complaints are DISMISSED without prejudice. The Clerk is directed to enter judgment. Signed by Judge Elaine D. Kaplan. (vds) Service on parties made. Certified Mail Receipt Tracking# 7018 1830 0001 4963 6793
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Nos. 18-1998T/19-42T (Consolidated)
(Filed: September 12, 2019)
WILLIAM H. LOVETT, JR.,
THE UNITED STATES OF AMERICA,
PAMELA H. LOVETT,
THE UNITED STATES OF AMERICA,
Keywords: I.R.C. § 6212; I.R.C. § 6213;
I.R.C. § 6320; I.R.C. § 6330; I.R.C.
§ 6511; I.R.C. § 7422; RCFC 12(b)(l);
Tucker Act; Subject-Matter Jurisdiction.
Received - USCFC
SEP 12 2019
William H Lovett, Jr. and Pamela H Lovett, Wauchula, FL, prose.
Jason S. Selmont, Attorney of Record, U.S. Department of Justice, Tax Division, Court of
Federal Claims Section, Washington, DC, with whom were G. Robson Stewart, Assistant Chief,
Court of Federal Claims Section, David I Pincus, Chief, Court of Federal Claims Section, and
Richard E. Zuckerman, Principal Deputy Assistant Attorney General, for Defendant.
OPINION AND ORDER
The plaintiffs in these consolidated cases, William H. and Pamela H. Lovett ("the
Lovetts"), are married to one another and own a veterinary clinic in Florida. They claim
entitlement to refunds of all taxes paid for tax years 2000 through 2017 on the grounds that the
government lacked the legitimate authority to collect those taxes. This theory is grounded in part
on the Tax Court' s dismissal of their previous lawsuit there for lack of jurisdiction. The Lovetts
have invoked several legal theories in support of their claims, including takings law, tort-related
7018 1830 0001 4963 6793
causes of action, and equity. The government has moved to dismiss both of the consolidated
cases pursuant to Rule 12(b)(l) of the Rules of the Court of Federal Claims ("RCFC"). The
Court agrees with the government that it lacks subject-matter jurisdiction over the Lovetts'
claims regardless of which of their legal theories it applies. Therefore, the government's motion
to dismiss is GRANTED and both complaints are DISMISSED without prejudice.
On December 26, 2017, the Lovetts filed a petition in the United States Tax Court for tax
years "2000-FORWARD." Mot. Of The United States To Dismiss The Compl. ("Def.' s Mot.")
Ex. 1, at 1, Docket No. 10. 1 The government moved to dismiss the petition for lack of
jurisdiction on the grounds that (1) no notice of deficiency had been filed in accordance with
I.R.C. §§ 6212 and 6213(a) for any of the tax years in question, and (2) no notice of
determination had been sent to the Lovetts in accordance with I.R.C. §§ 6320 and 6330. Compl.
Ex. A, at 1, Docket No. 1-6. The Lovetts filed a notice stating they did not oppose dismissal for
lack of jurisdiction and requested five certified copies of the order dismissing the case. See id.
Ex. B, at 1, Docket No. 1-7. On May 25 , 2018, the Tax Court entered an order dismissing the
petition based on both grounds cited by the government. Id.
Mr. and Mrs. Lovett then filed separate complaints in this court on December 21, 2018,
and January 2, 2019, respectively. See Compl., Docket No. 1; Compl., Case No. 19-42 ("P.
Lovett' s Compl."), Docket No. 1. Both complaints allege that the government has "forc[ed]" and
"coerced" the Lovetts to file "returns without jurisdiction." Compl. at 1-2; P. Lovett' s Compl. at
1-2. 2 Both complaints demanded damages in the amount of $344,067.00. Compl. at 1; P.
Lovett' s Compl. at 1. 3
The government moved to dismiss both complaints pursuant to RCFC 12(b)(l) on April
16, 2019. Case No. 18-1998, Docket No. 10; Case No. 19-42, Docket No. 12. It argued that the
Lovetts had not satisfied the jurisdictional prerequisites for filing a refund suit because they had
Unless otherwise noted, all citations are to the docket for the lead case, No . 18-1998. The
government filed substantively similar motions to dismiss in each case and-after
consolidation-a single reply brief in support of both motions.
The arguments underlying the Lovetts ' claims closely resemble the legal theories set forth in
several other complaints filed in this court. See Def.' s Mot. at 3 n.2 (listing cases). Many of these
cases remain pending, while at least three have been dismissed for lack of subject-matter
jurisdiction. See Anderson v. United States, No . 19-168T, 2019 WL 2552938 (Fed. Cl. June 3,
2019); Jackson v. United States, 143 Fed. Cl. 242 (2019); Barry v. United States, No. 18-1387T,
2019 WL 1420973 (Fed. Cl. Mar. 28, 2019).
The Lovetts later requested additional amounts for tax years 1970-1999. See Pl.' s Obj . To
Def.'s Mot. To Dismiss And Incorporated Mem. Of Law ("Pl.'s Resp.") at 6, Docket No . 11 ;
Pl.' s Resp. to Def. ' s Mot., Case No. 19-42 ("P. Lovett' s Resp. ") at 6, Docket No. 13 . The Court
lacks jurisdiction over such claims for the same reasons discussed with regard to the tax years
covered by the original complaints.
not filed claims for refund for any of the subject tax years, as required by I.R.C. § 7422. Def. ' s
Mot. at 4-6. The government's motions also argued that this Court lacks subject-matter
jurisdiction over claims arising from alleged "coercion" because those claims would sound in
tort. Id. at 6.
The Lovetts filed responses to the government's motions to dismiss in each of their
respective cases on May 14, 2019. See Pl. ' s Obj . To Def. ' s Mot. To Dismiss And Incorporated
Mem. Of Law, Case No. 18-1998 ("Pl.'s Resp."), Docket No. 11; Pl.'s Obj. To Def.'s Mot. To
Dismiss And Incorporated Mem. Of Law, Case No. 19-42 ("P. Lovett's Resp."), Docket No. 13.
Both responses disavowed any intent to bring a tort or tax-refund claim and instead relied on a
Fifth Amendment takings theory. Pl. ' s Resp. at 4-5; P. Lovett' s Resp. at 4-5. The Lovetts each
argued that their property had been "erroneously and unjustly taken under a certain color of law
and authority with scheme and artifice more commonly known and described as ' federal income
taxes' by contractors operating under the protection of Defendant under the umbrella of the
[IRS] ." Pl. ' s Resp. at 1-2; P. Lovett's Resp. at 1-2. They also maintained that the government
had deprived them of their "substantive due process oflaw rights with an ongoing course of
conduct with intent to defraud." Pl.'s Resp. at 5; P. Lovett's Resp. at 5.
In its unified reply in support of both motions to dismiss, the government reiterated its
argument that the Court lacks jurisdiction because the Lovetts have not filed claims for refund in
accordance with the governing statutory scheme. Reply Br. In Further Supp. Of The Mot. Of The
United States To Dismiss The Compl. at 2, Docket No. 14. The government also contended that
the Lovetts' arguments conflate the subject-matter jurisdiction of the Tax Court and/or the Court
of Federal Claims with the IRS ' s authority to collect taxes. Id. at 3-4. The government further
argued that the Court lacks jurisdiction over the claims whether they are characterized as tort or
takings claims, and finally that the Court lacks jurisdiction over any due process claims the
Lovetts alleged in their response briefs. Id. at 4-6.
On June 5, 2019, the Court received from the Lovetts a response to the government's
reply brief. See Order, Docket No. 16. That response was filed as a sur-reply by leave of the
Court on June 10. Id.; Pls.' Resp. To Def. ' s Reply Br. In Further Supp. of the Mot. Of The
United States to Dismiss The Compl. ("Pls.' Sur-reply"), Docket No. 17. Therein, the Lovetts
conveyed their intention to have their claims "heard in equity" and specifically disavowed any
claims "for a certain 'tax refund."' Pls. ' Sur-reply at 1. They also again refuted any suggestion
that they were bringing any tort claims. Id. Instead, the Lovetts argued in their sur-reply that the
income "generated" in their veterinary business "is not subject to federal income tax law as it
does not come from any source subject to the federal tax law." Id. at 4. They concluded their surreply with the assertion that all of their '" federal income tax payments' were based on
constructive fraud bordering on extortion, theft or robbery primarily perpetrated and perpetuated
by the IRS." Id. at 5.
Having reviewed all of the parties' submissions, the Court agrees with the government
that it lacks subject-matter jurisdiction over the Lovetts' claims regardless of which of the abovediscussed theories the Court applies in its analysis. Whether a court has jurisdiction to decide a
case is a threshold matter, and, if no jurisdiction exists, the court must order dismissal without
proceeding further. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 , 94-95 (1998);
RCFC 12(h)(3). The plaintiff bears the burden of establishing subject-matter jurisdiction by a
preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013). It
is well established that complaints filed by pro se plaintiffs are held to "less stringent standards
than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).
Nonetheless, even prose plaintiffs must persuade the court that jurisdictional requirements have
been met. Bernard v. United States, 59 Fed. Cl. 497, 499 (2004), aff d, 98 F. App' x 860 (Fed.
Further, the Court has "an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006). Thus, the Court may raise the issue of subject-matter jurisdiction sua
sponte at any time, see Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed.
Cir. 2008), and may "inquire into jurisdictional facts" to determine whether it has jurisdiction,
Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991).
The Lovetts Have Not Satisfied The Jurisdictional Prerequisites For Tax Refund
Although the Lovetts have explicitly disavowed any attempt to allege tax refund claims,
the substance of their submissions to the Court revolves primarily around tax-related grievances.
Regardless, the claims do not fall within the Court's tax-refund jurisdiction.
The Tucker Act grants the Court of Federal Claims jurisdiction to hear "any claim against
the United States founded either upon the Constitution, or any Act of Congress or any regulation
of an executive department, or upon any express or implied contract with the United States, or
for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). It
is well established that this jurisdictional grant extends to suits for the refund of taxes remitted to
the Treasury. See Ont. Power Generation v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);
Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002); Shore v. United States, 9 F.3d
1524, 1525 (Fed. Cir. 1993); see also 28 U.S.C . § 1346(a)(l) (granting the Court of Federal
Claims concurrent jurisdiction with the district courts over civil actions "against the United
States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally
assessed or collected, or any penalty claimed to have been collected without authority or any sum
alleged to have been excessive or in any manner wrongfully collected under the internal-revenue
This Court's exercise of that jurisdiction is subject, however, to several statutory and
jurisprudential prerequisites. See Ishler v. United States, 115 Fed. Cl. 530, 534-36 (2014).
Among these is the requirement set forth in§ 7422(a) that the taxpayer file an administrative
refund request before filing a tax refund suit. Specifically, § 7422(a) provides that: "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." Moreover, under I.R.C. § 651 l(a), the taxpayer must file
the administrative refund request within the later of "3 years from the time the return was filed or
2 years from the time the tax was paid." Unless and until such a refund request is filed, "a suit for
refund ... may not be maintained in any court." United States v. Dalm, 494 U.S. 596, 602
Here, the Lovetts claim that they are entitled to be repaid the sum of all of the income
taxes they previously paid for tax years 2000 through 2017. Their position is based on their
argument that the government lacked legitimate authority to collect the subject taxes. The Court
finds that it lacks subject-matter jurisdiction to adjudicate the Lovetts' claims as refund claims
because they have neither alleged nor shown that they ever filed any "claim for refund or credit"
as required by§ 7422(a). Although tax returns may function as administrative refund claims,
they are claims only "for the amount of the overpayment disclosed by such return (or amended
return). " 26 C.F.R. § 301.6402-3(a)(5); see also, e.g., Murdock v. United States, 103 Fed. Cl.
389, 394 (2012) ("The filing of a tax return reporting overpayments constitutes a simultaneous
filing of [a claim for refund]. "). Therefore, the Lovetts ' returns for 2000 through 2016 cannot
serve as claims for refund because they did not report the "overpayment" of the taxes they now
claim they are entitled to recoup. See Murdock, 103 Fed. Cl. at 394; Exs. to Compl., Docket Nos.
1-3 to 1-5, 1-8 to 1-23. 4 Further, their submissions to the Court do not assert that they have ever
filed the required administrative claims; indeed their sur-reply expressly states that they are not
making claims "for a certain 'tax refund. "' Pls.' Sur-reply at 1.
For these reasons the Court finds that, to the extent the Lovetts have in fact brought tax
refund claims, it lacks subject-matter jurisdiction to adjudicate them based on the Lovetts' failure
to demonstrate they have fulfilled the statutory prerequisites set forth in§ 7422(a).
The Court Lacks Jurisdiction Over Purported Takings Claims Challenging
Allegedly Unlawful Government Actions
The Lovetts' responses to the government's motions to dismiss invoke the Fifth
Amendment's Takings Clause. Pl. ' s Resp. at 2-5 ; P. Lovett' s Resp. at 2-5. They cannot bring
takings claims within the Court's Tucker Act jurisdiction, however, without "conced[ing] the
validity of the government action which is the basis of' the claims. Tabb Lakes, Ltd. v. United
States, 10 F.3d 796, 802 (Fed. Cir. 1993); see also Shelden v. United States, 742 F. App'x 496,
501 (Fed. Cir. 2018) ("[T]he [Court of Federal Claims] lacks jurisdiction over takings claims in
which the petitioner asserts the subject taking was not authorized."). Because the Lovetts
maintain that the government illegitimately collected income tax from them, the Court lacks
jurisdiction to consider their claims pursuant to the Fifth Amendment. Moreover, it is well settled
that "the government's lawful exercise of its taxing powers is not a taking." Anderson v. United
States, 2019 WL 2552938, at *3 (citing United States v. Sperry Corp., 493 U.S . 52, 62 n.9
(1989); Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1339-40 (Fed. Cir. 2001);
Atlas Corp. v. United States, 895 F.2d 745 , 756 (Fed. Cir. 1990)).
For these reasons, the Court lacks subject-matter jurisdiction over any takings claims the
Lovetts have attempted to assert in their submissions to the Court.
The Court Lacks Subject-Matter Jurisdiction Over Tort And Criminal Claims
The Lovetts have not attached a copy of any return for 2017 to their complaints, and the
government' s records indicate that the Lovetts have not filed a return for tax year 2017. Def.' s
Mot. Ex. 11, at 29.
The Lovetts have also couched their allegations in several legal theories which constitute
tort claims. They have alleged that: (1) they were "coerced .. . to file returns without
jurisdiction," Compl. at 2; (2) their property was taken through fraud or false pretenses, Pl.'s
Resp. at 1; and (3) the government engaged in "constructive fraud bordering on extortion, theft
or robbery," Pls. ' Sur-reply at 5. Because these are tort claims, the Court lacks subject-matter
jurisdiction over them. See, e.g., Moore v. United States, 419 F. App' x 1001 , 1002 (Fed. Cir.
2011) (observing that the Court of Federal Claims lacks jurisdiction over tort claims including
extortion); Stewart v. United States, 130 Fed. Cl. 172, 177-78 (2017) (collecting cases); Outlaw
v. United States, 116 Fed. Cl. 656, 662 (2014) (" [F]raud and coercion are tort claims-over
which this court has no Tucker Act jurisdiction.").
Similarly, to the extent that the Lovetts allege criminal wrongdoing on the part of the
government, the Court also lacks subject-matter jurisdiction over such claims. See Moore, 419 F.
App'x at 1002 (ruling that the Court lacks jurisdiction over criminal claims including conspiracy
and theft) ; Stewart, 130 Fed. Cl. at 178 (collecting cases).
The Court Lacks Subject-Matter Jurisdiction Over Due Process Claims
The Lovetts have also invoked their "substantive due process of law rights" in their
responses to the government's motion to dismiss. Pl. ' s Resp. at 5; P. Lovett' s Resp. at 5. Because
it is well established that due process claims do not fall within the Court' s Tucker Act
jurisdiction, the Court may not consider any due process claims the Lovetts have asserted. See
Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) ("The law is well settled that the
Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the payment
of money and thus do not provide a cause of action under the Tucker Act.").
The Court Does Not Possess General Equity Jurisdiction
In their sur-reply, the Lovetts state that they "intended to have and still wish to have this
claim heard in equity." Pls.' Sur-reply at 1. Although the Court may order equitable relief "as an
incident of and collateral to" a judgment, it "does not possess general equity jurisdiction." Roth
v. United States, 378 F.3d 1371 , 1384 (Fed. Cir. 2004); see also Martinez v. United States, 333
F.3d 1295, 1303 (Fed. Cir. 2003). In other words, the Lovetts cannot bring a standalone equitable
claim in this court in the absence of a related claim falling under the jurisdiction granted by the
Tucker Act-which, as explained above, is lacking here. Like the other legal theories they have
advanced, the Lovetts' desire to have their claims "heard in equity" is unavailing for purposes of
demonstrating the Court's subject-matter jurisdiction over their claims. Therefore, the Court
finds that they have not satisfied their burden to demonstrate proper jurisdiction through
Based on the foregoing, the government' s motion to dismiss is GRANTED and
Plaintiffs' complaints are DISMISSED without prejudice for lack of subject-matter jurisdiction
pursuant to RCFC 12(b)(l). The Clerk is directed to enter judgment accordingly. The parties
shall bear their own costs.
IT IS SO ORDERED.
ELAINE D. KAPLAN
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