Meuli v. Internal Revenue Service, Commissioner of

Filing 26

MEMORANDUM AND ORDER granting 7 Motion to Dismiss without prejudice for Lack of Jurisdiction. Signed by District Judge Richard D. Rogers on 8/17/2011.Mailed to pro se party Gene Meuli by regular mail (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GENE E. MEULI,
Plaintiff,
vs.

Case No. 11-1044-RDR

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM AND ORDER
On July 6, 2011, this court issued an order addressing
plaintiff’s amended complaint and a motion to dismiss filed by
defendant.

The

court

stated

that

plaintiff

appeared

to

be

challenging the assessment and collection of a penalty by the
Internal Revenue Service, but that plaintiff had failed to allege
and establish the grounds for this court’s jurisdiction to consider
his claims. The court further commented that materials outside the
pleadings indicated that plaintiff had not filed a claim for refund
or other administrative claim necessary to establish jurisdiction
in this court.

Doc. No. 22 at p. 10.

The court gave plaintiff

twenty days to submit any materials which might be pertinent to
defendant’s motion to dismiss.

Id. at pp. 10-11.

On July 21, 2011, plaintiff filed a document titled “Request
to Take Judicial Notice of Plaintiff’s Claim for Refund.” Doc. No.
24.

This document states:
The Plaintiff has filed the IRS Form 843, Claim for
Refund and Request for Abatement, as of July 9, 2011. A

copy of Form 843 is herein enclosed.
The United States has waived sovereign immunity and
this Court can assume subject matter jurisdiction, as the
Plaintiff has exhausted his administrative remedies.
The Defendant has until Jan. 10, 2012 in which to
refund Plaintiff’s assessed penalty plus interest as per
the Claim for Refund, or prove in Court that the
Plaintiff’s 2002 Form 1040 Federal Income Tax return is
frivolous. If the Defendant fails to complete either
option by Jan. 10, 2012, [t]he Plaintiff ask[s] this
Court to grant Plaintiff’s Motion for Summary Judgment.
In response, defendant contends that plaintiff cannot cure a
jurisdictional defect by exhausting administrative remedies after
filing

his

plaintiff

complaint.
filed

his

jurisdictional defects:

Defendant
original

contends
complaint,

that

at

there

the

time

were

two

1) plaintiff had not paid the assessed

penalty; and 2) plaintiff had not filed an administrative claim for
refund.

Defendant argues that, although plaintiff has paid the

assessed

penalty

and

filed

a

claim

for

refund,

the

court’s

jurisdiction must be determined on the basis of the facts as they
existed when the original complaint was filed.

In addition,

defendant claims that this court cannot exercise jurisdiction over
plaintiff’s claim because the law requires either that the IRS has
denied the claim or six months has passed without an IRS response.
Six months has not passed since plaintiff filed a claim for
refund and no one has argued that the IRS has denied plaintiff’s
claim.

Defendant’s position that one of these conditions is

necessary for this court’s jurisdiction is supported by Tenth
Circuit case authority. Mires v. U.S., 466 F.3d 1208, 1211-12 (10th

2

Cir. 2006).

To the extent that plaintiff’s pleading should be

treated as a request to stay the case until the IRS has responded
to his refund claim, the court shall deny the request. See Midwest
Crane and Rigging, Inc. v. U.S., 2010 WL 4968274 (D.Kan. 8/6/2010)
(declining to stay case in the interest of orderly administration
of tax refund claims).
In conclusion, for the reasons stated in this order and the
court’s order dated July 6, 2011, this case shall be dismissed
without prejudice for lack of subject matter jurisdiction.
IT IS SO ORDERED.
Dated this 17th day of August, 2011 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

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