Peng v. Internal Revenue Service

Filing 5

ORDER Accepting 3 Report and Recommendation. Plaintiff's Complaint is dismissed for lack of subject matter jurisdiction. FURTHER ORDERED that 4 Motion for Hearing is DENIED. FURTHER ORDERED that the clerk of court shall seal Dkt. #1-1 and Dkt. #4 because those filings contain personal identifiers. Signed by Judge Andrew P. Gordon on 7/8/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PHILIP CHIH-HSIN PENG,

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Case No. 2:14-cv-01836-APG-GWF

Plaintiff,
ORDER
v.
INTERNAL REVENUE SERVICE,

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(DKT. #1, #3, #4)

Defendant.

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On March 30, 2015, Magistrate Judge Foley entered his Findings and Recommendation
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(Dkt. #3) recommending I dismiss the complaint for lack of subject matter jurisdiction. Plaintiff
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Philip Peng filed a motion for a hearing. (Dkt. #4.)
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I conducted a de novo review of the issues set forth in the Findings and Recommendation.
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28 U.S.C. § 636(b)(1). Judge Foley’s Findings and Recommendation sets forth the proper legal
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analysis and factual basis for the decision. In addition to Judge Foley’s analysis, there is no
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allegation in the complaint that Peng paid the deficiency such that he could sue in federal court
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for a refund. See 26 U.S.C. § 7422; 28 U.S.C. § 1346; Reynoso v. United States, 692 F.3d 973,
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980 (9th Cir. 2012) (citing Flora v. United States, 357 U.S. 63, 68-69 (1958)).
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IT IS THEREFORE ORDERED that the Findings and Recommendation (Dkt. #3) is
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accepted and the complaint is dismissed for lack of subject matter jurisdiction.
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IT IS FURTHER ORDERED that plaintiff Philip Peng’s motion for a hearing (Dkt. #4) is
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DENIED.
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IT IS FURTHER ORDERED that the clerk of court shall seal Dkt. #1-1 and Dkt. #4
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because those filings contain personal identifiers.
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DATED this 8th day of July, 2015.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE