LOFTON v. USA
ORDER DISMISSING CASE: Defendant's 13 Motion to Dismiss plaintiff's complaint for lack of subject matter jurisdiction is GRANTED. Plaintiff's 1 Complaint filed on September 14, 2022 is DISMISSED without prejudice. The Clerk is directed to ENTER Judgment DISMISSING this case without prejudice. The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. No costs. Signed by Judge Armando O. Bonilla. (ead) Service on parties made.
In the United States Court of Federal Claims
(Filed: November 18, 2022)
ORDER OF DISMISSAL
Plaintiff pro se Somona Lofton filed this calendar year 2021 federal income
tax refund case against the United States on September 14, 2022. 1 See ECF No. 1.
Plaintiff alleges she filed a 2021 Form 1040-X, Amended U.S. Individual Income
Tax Return, on May 18, 2022, claiming a federal income tax refund in the amount of
$5,362. 2 See ECF No. 1 at 2; ECF 1-2 at 20. Plaintiff seeks to challenge the IRS’s
“refus[al] to process [her] Amended Tax return.” See ECF No. 1 at 2. Plaintiff
As explained in the Court’s October 6, 2022 Order, the complaint also alleged that employees of the
State of California Health and Human Services Agency, Department of Social Services, harassed
plaintiff and withheld her state benefits. See ECF No. 9. In granting plaintiff’s application to
proceed in forma pauperis under 28 U.S.C. § 1915(a), the Court dismissed these allegations for lack
of subject matter jurisdiction. See ECF No. 9. On November 14, 2022, plaintiff filed a notice of
appeal of the partial dismissal. See ECF No. 12. Nevertheless, this Court retains jurisdiction over
this case for at least two reasons: the Court’s October 6, 2022 Order is a non-appealable non-final
order; and the tax refund issue addressed herein was not the subject of the October 6, 2022
dismissal. See, e.g., Lopez v. United States, No. 2022-2096, 2022 WL 10225320, at *1 (Fed. Cir.
Oct. 18, 2022) (discussing non-appealable orders issued by Court of Federal Claims); Gilda Indus.,
Inc. v. United States, 511 F.3d 1348, 1350–51 (Fed. Cir. 2008) (same).
According to plaintiff’s complaint, she filed her original 2021 Form 1040, U.S. Individual Income
Tax Return, on April 8, 2022, claiming a federal income tax refund in the amount of $6,668. See
ECF No. 1 at 2; ECF No. 1-2 at 21. On or about May 16, 2022, the U.S. Department of the Treasury,
Internal Revenue Service (IRS), notified plaintiff of an error in her 2021 Form 1040 related to her
claimed Refundable Child Tax Credit, and adjusted (reduced) her refund to $3,918. See ECF No. 1 at
2; ECF No. 1-2 at 15–16. Although not material to the jurisdictional issue presented, the complaint
is silent as to whether plaintiff received the $3,918 refund.
claims the following relief: “$5,362.00 [t]ax refund amount.” Id. at 3. Pending
before the Court is defendant’s motion to dismiss plaintiff’s complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United
States Court of Federal Claims (RCFC). See ECF No. 13. Specifically, defendant
asserts plaintiff’s complaint was filed prematurely–i.e., before the expiration of the
six-month waiting period required under 26 U.S.C. § 6532(a)(1), which allows the
IRS time to investigate and process tax refund claims. The Court agrees.
“To maintain a tax refund suit against the United States, taxpayers must
first file a refund claim with the [IRS].” Weston v. United States, No. 2022-1179,
2022 WL 1097361, at *1 (Fed. Cir. Apr. 13, 2022) (citing 26 U.S.C. § 7422(a)). In
turn, Title 26, United States Code, Section 6532(a)–titled “Suits by taxpayers for
refund”–provides in relevant part:
No suit or proceeding under section 7422(a) for the recovery of any
internal revenue tax, penalty, or other sum, shall be begun before the
expiration of 6 months from the date of filing the claim required under
such section unless the Secretary renders a decision thereon within
that time . . . .
26 U.S.C. § 6532(a)(1). The filing of the refund claim begins the six-month clock
codified in § 6532(a). Unless the IRS issues a notice of decision during the
six-month period, the filer must await the end of the statutory period before
filing suit in this Court.
Plaintiff filed this tax refund suit on September 14, 2022; by the Court’s
calculation: 3 months and 27 days after purportedly filing her 2021 Form 1040-X.
In alleging the IRS has not yet processed her refund, plaintiff concedes the IRS did
not issue a decision prior to her filing suit. Because the six-month statutory waiting
period had not expired at the time plaintiff filed her complaint, this Court lacks
jurisdiction to adjudicate this action. See Weston, 2022 WL 1097361, at *1 (“[T]he
failure to file a timely complaint under § 6532(a)(1) deprives the [Court of Federal
Claims] of subject matter jurisdiction.”) (citing cases); e.g., Gaynor v. United States,
150 Fed. Cl. 519, 538 (2020) (dismissing tax refund claims for lack of jurisdiction
because the “requisite waiting period had not yet elapsed” when plaintiff filed the
The irony is not lost on the Court that this Order of Dismissal is being issued
on the precise date that Ms. Lofton’s statutory six-month waiting period expires.
As noted by the government, however, the jurisdictional requirements of § 6532(a)
must be satisfied at the time a tax refund suit is filed. See Gaynor, 150 Fed. Cl. at
537–38 (“[O]ur jurisdiction is assessed at the time at which a complaint is filed –
not subsequently, after a plaintiff already has filed an action. Concluding otherwise
would render the statutory waiting period a dead letter.”). Accordingly, plaintiff’s
complaint must be dismissed, albeit without prejudice. Indeed, plaintiff may refile
her tax refund complaint as early as today, though she could not have so as late as
For the reasons set forth above,
(1) Defendant’s Motion to Dismiss plaintiff’s complaint for lack of subject matter
jurisdiction (ECF No. 13) is GRANTED;
(2) Plaintiff’s Complaint filed on September 14, 2022 (ECF No. 1) is
DISMISSED without prejudice;
(3) The Clerk is directed to ENTER Judgment DISMISSING this case
without prejudice; and
(4) The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order would not be taken in good faith.
It is so ORDERED.
s/ Armando O. Bonilla
Armando O. Bonilla
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