BETTIS-TAYLOR v. USA

Filing 14

Order of Dismissal denying 6 Motion for Leave to Proceed in forma pauperis; finding as moot 7 Motion to Correct Name on the Court Docket; finding as moot 8 Motion to Appoint Counsel; finding as moot 9 Motion to Take Judicial Notice of the Governing Trust Instrument; finding as moot 13 Motion to Dismiss - Rule 12(b)(1); directing the clerk's office to return, unfiled, the document received on October 6, 2020; directing the Clerk to enter judgment, and directing the Clerk's Office to not receive any further filings from plaintiff absent consultation from the undersigned judge or another judge of the court. . Signed by Senior Judge Eric G. Bruggink. (hem) Service on parties made; plaintiff served via U.S. mail. (dls) (Main Document 14 replaced on 10/20/2020 to correct a footnote typo.) Modified on 10/20/20 to add docket language re: not accepting further filings.

Case 1:20-cv-00911-EGB Document 14 Filed 10/20/20 Page 1 of 4

Corrected

In the United States Court of Federal Claims
No. 20-911T
(Filed: October 20, 2020)
**************************
KIRELL F. TAYLOR,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
**************************
ORDER
Plaintiff, appearing pro se, filed his complaint on July 17, 2020,
alleging what appears to be a tax refund claim, and later filed a motion to
proceed in forma pauperis on August 12, 2020. 1 Although 28 U.S.C. § 1915
generally allows the prosecution of lawsuits in the federal courts by prisoners
without the payment of filing fees upon a showing of the inability to pay, 28
U.S.C. § 1915(a) (2018), it also prohibits proceeding without paying the
filing fee if a prisoner “has on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted.” Id. § 1915(g). As
a cursory search of his filing history in the district courts reveals, Mr. Kirell
F. Taylor is prohibited from bringing a civil action without paying the filing
fee. See, e.g., Kirell Francis Bettis Trust v. IRS, No. 1:19-cv-01342, 2019
U.S. Dist. LEXIS 170679, at * 2-3 (E.D. Cal. Oct. 1, 2019) (Order dismissing
action for failure to pay the filing fee and citing eight prior actions dismissed
as frivolous or failing to state a claim). Having failed to pay the fee, dismissal
Plaintiff has also asked that the case caption be amended to include the
trust that exists in his name. We need not reach this motion (ECF No. 7)
because the complaint must be dismissed.
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is appropriate given the purpose of section 1915(g). E.g. Resendez v. United
States, 96 Fed. Cl. 283, 287-88 (2010).
We note also that, even if dismissal for failure to pay the fee was
inappropriate, we would dismiss the complaint sua sponte for lack of
jurisdiction. Defendant filed a motion to dismiss on October 15, 2020.
Plaintiff has not responded to date. We need not wait for a response,
however, because it is clear on the face of the complaint that we lack
jurisdiction. Mr. Bettis-Taylor filed his complaint on July 17, 2020. The
complaint filed pro se, states that it is an action under “28 U.S.C. sections
1491-1509, 6511, 7422, 7433.” Plaintiff appears to seek a tax refund for the
2015, 2016, 2017, 2018, and 2019 taxable years. Plaintiff requests an order
(1) requiring the IRS to “award” $151,987,785,882.00 to the California
Franchise Tax Board, (2) requiring the IRS and the Secretary of Treasury to
“award” $151,987,785,882.00 to the Treasury of the United States; and (3)
requiring the IRS and Treasury to “award” $6,000,000,000.00 to the
“fiduciary” Kirell F. Taylor, pursuant to 26 U.S.C. § 7623(b).
Plaintiff bears the burden of establishing the court’s jurisdiction over
his claim. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178,
189 (1936). The court must dismiss a complaint when it finds that it lacks
jurisdiction. Rule 12(h)(3). The court “consider[s] the facts alleged in the
complaint to be true and correct,” but when defendant challenges the
jurisdictional facts, the court may consider relevant evidence to determine
whether it has jurisdiction. Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 747 (Fed. Cir. 1988).
Plaintiff did not clearly identify a statute which grants jurisdiction to
the United States Court of Federal Claims. The relief requested in the
complaint appears to be a claim for refund. Congress granted the Court of
Federal claims the authority to entertain tax refund suits. See 28 U.S.C. §
1346(a). To bring suit for a tax refund, the taxpayer must make a full
payment of his tax liabilities and file a timely claim for refund with the IRS.
See Flora v. United States, 357 U.S. 63, 75 (1958); I.R.C. § 7422(a). Thus,
this court’s jurisdiction is limited to those claims where the taxpayer has fully
paid all taxes assessed for the year at issues prior to filing suit. See Flora,
357 U.S. at 75. Additionally, prior to filing a complaint in this court, the
taxpayer must timely file a claim with the IRS and await a denial of the
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refund claim or the claim must be deemed denied. I.R.C. § 6532(a). Lastly,
standing in a tax refund suit requires the plaintiff to be the one against whom
the tax in question was assessed. See, e.g., Ellison v. United States, 558 F.
Supp. 158, 160 (W.D. Mo. 1982).
Plaintiff fails to meet his burden to establish jurisdiction. Plaintiff’s
payments are based on the alleged “Instrument,” which this court has already
determined in a prior suit to be frivolous and without value. Bettis v. United
States, No. 17-766T, 2017 Fed. Cl. LEXIS 1685, at *14 (2017).
Additionally, plaintiff’s IRS records show that he has not made payments, in
neither his individual capacity nor on behalf of his alleged trust, entitling him
to a refund of taxes. Instead, it appears plaintiff has filed many amended
returns and filings that were deemed frivolous tax returns. Plaintiff’s failure
to make tax payments barrs him from maintaining an action for a refund of
taxes under the full payment rule. Flora, 357 U.S. at 75.
Plaintiff also asks the court to “award” $151 billion to the California
Franchise Tax Board and to the Treasury of the United States, based on a
payment from his “Irrevocable Floating Line of Credit.” This court
previously found that these purported payments were frivolous and without
value. Further, plaintiff failed to demonstrate that it would have standing to
bring suit for tax refund on behalf of a third-party entity. Saladino v. United
States, 62 Fed. Cl. 782, 793 (2004).
Finally, plaintiff appears to make a claim under a whistle-blower
statute, I.R.C. § 7623(b), by requesting that the Court “award” $6 billion to
“the fiduciary Kirell F. Bettis-Taylor.” This statute generally requires the
IRS to pay an award of between 15% and 30% of the proceeds collected
based upon a whistleblower's information. Whistleblowers may file a
petition with the United States under I.R.C. § 7623(b)(4) if they are
dissatisfied with the amount of the award. However, the Court of Federal
Claims lacks jurisdiction over any whistleblower claim under this statute, as
the grant of jurisdiction of these claims is exclusive to the United States Tax
court. See. e.g., Capeloulo v. United States, 99 Fed. Cl. 682, 691 (2011).
Because plaintiff is not eligible to proceed in forma pauperis, has not
paid the filing fee, and has brought an action that is clearly outside of our
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jurisdiction, the case must be dismissed. Accordingly, the following is
ordered:
1. Plaintiff’s motion to proceed in forma pauperis is denied.
2. The clerk’s office is directed to return the document received on
October 6, 2020, to plaintiff unfiled.
3. All other pending motions are denied as moot.
4. The Clerk of Court is directed to dismiss the complaint for failure
to pay the filing fee and to enter judgment accordingly.
5. The Clerk’s Office is directed not to receive any further filings
from the individual absent consultation from undersigned or
another judge of this court.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge

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