Suvak v. United States of America

Filing 14

MEMORANDUM AND ORDER granting 8 Motion to Dismiss. For the foregoing reasons, the defendant's motion (Docket no. 8) is granted, and the plaintiff's claims as to 1998, 1999, and 2004 are dismissed. The case shall proceed with respect to the remaining claims. (Signed by Magistrate Judge James C. Francis on 5/21/2013) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
ROBERT M. SUVAK,
:
:
Plaintiff,
:
:
- against :
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

(ECF)
12 Civ. 6004 (JCF)
MEMORANDUM
AND ORDER

In this action, plaintiff Robert Suvak claims he has been
wrongfully denied income tax return refunds that were due to him
for tax years 1998 through 2004.

The government moves to dismiss

his claims as to tax years 1998, 1999, and 2004 for lack of subject
matter jurisdiction under Rule 12(b)(1) of the Federal Rules of
Civil Procedure. The parties have consented to my jurisdiction for
all purposes, in accordance with 28 U.S.C. § 636(c).

For the

following reasons, the government’s motion is granted.
Background
Mr. Suvak did not file his federal income tax returns for tax
years 1998 through 2004 until 2010.

(Complaint (“Compl.”), ¶ 5).

He claims that he was unable to file the returns before that
because he was “financially disabled”1 due to bipolar disorder and
Asperger’s Disorder, a form of Autism.

1

(Compl., ¶¶ 6-7).

An individual is “financially disabled” where he is “unable
to manage his financial affairs by reason of a medically
determinable physical or mental impairment of the individual which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 26 U.S.C. § 6511(h)(2).
1

The plaintiff alleges that he overpaid his taxes and requested
a refund from the Internal Revenue Service (the “IRS”).
¶ 8).

(Compl.,

The IRS denied the claims for refund because Mr. Suvak had

filed his returns more than three years after the date that they
were due.
year

(Compl., ¶ 9).

statute

of

He appealed on the ground that the three

limitations

financially disabled.

did

not

apply

because

he

was

(Compl., ¶ 10).

An IRS Appeals Officer denied the plaintiff’s 1998 refund
claim because the doctors who documented his medical conditions
were not treating him when his 1998 tax return was due.
¶ 12).

(Compl.,

The Appeals Office denied the claims for tax years 2000

through 2003 because Mr. Suvak was employed and therefore did not
qualify as financially disabled.

(Compl., ¶ 11).

His claims for

tax years 1999 and 2004 have not been reviewed by the IRS Appeals
Office.

(Compl., ¶ 14).

The plaintiff claims he subsequently obtained letters that
establish he was financially disabled since 1998, but the Appeals
Office refused to review those letters.

(Compl., ¶ 13).

On August 6, 2012, the plaintiff brought this suit. After the
government moved to dismiss, I set a briefing schedule, but Mr.
Suvak never answered the motion.
Discussion
A.

Legal Standard

“[A] district court may properly dismiss a case for lack of
subject matter jurisdiction under Rule 12(b)(1) [of the Federal
Rules

of

Civil

Procedure]

if
2

it

lacks

the

statutory

or

constitutional power to adjudicate it.’” Shabaj v. Holder,
,

F.3d

, 2013 WL 1760540, at *2 (2d Cir. 2013) (first alteration in

original) (quoting Aurecchione v. Schoolman Transportation System,
426 F.3d 635, 638 (2d Cir. 2005)); accord United States v. Blake,
F. Supp. 2d

,

, 2013 WL 1728937, at *5 (E.D.N.Y. 2013).

The

standard for reviewing a motion to dismiss under Rule 12(b)(1) is
the same as a motion brought under Rule 12(b)(6) “except that ‘[a]
plaintiff asserting subject matter jurisdiction has the burden of
proving beyond a preponderance of the evidence that it exists.’”
Blake,

F. Supp. 2d at

, 2013 WL 1728937, at *5 (quoting

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
Thus, the court “‘must take all facts alleged in the complaint as
true and draw all reasonable inferences in favor of plaintiff, but
jurisdiction must be shown affirmatively, and that showing is not
made by drawing from the pleadings inferences favorable to the
party asserting it.’”

Winters v. United States, No. 10 Civ. 7571,

2013 WL 1627950, at *3 (S.D.N.Y. April 16, 2013) (quoting Morrison
v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008)).
“In adjudicating a motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), the court may consider
matters outside the pleadings.”

Blake,

F. Supp. 2d at

, 2013

WL 1728937, at *5. The court may take into account “affidavits and
other materials beyond the pleadings to resolve the jurisdictional
issue, but [] may not rely on conclusory or hearsay statements
contained in the affidavits.”

J.S. ex rel. N.S. v. Attica Central

Schools, 386 F.3d 107, 110 (2d Cir. 2004).
3

An unopposed motion to dismiss does not warrant automatic
dismissal; rather, “‘the sufficiency of a complaint is a matter of
law that the court is capable of determining based on its own
reading of the pleading and knowledge of the law.’”

Accurate

Grading Quality Assurance, Inc. v. Thorpe, No. 12 Civ. 1343, 2013
WL 1234836, at *5 (S.D.N.Y. March 26, 2013) (quoting McCall v.
Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000)); see Jordan v.
Forfeiture Support Associates,

F. Supp. 2d

at

defendant’s

*3

(E.D.N.Y.

2013)

(deeming

, 2013 WL 828496,
dismissal

motions

unopposed because plaintiff failed to respond to them despite
multiple opportunities and addressing merits); Gray v. Metropolitan
Detention Center, No. 09 CV 4520, 2011 WL 2847430, at *2 n.3
(E.D.N.Y. July 15, 2011) (noting that plaintiff’s failure to
respond

to

motion

to

dismiss

under

Rule

12(b)(1)

does

not

automatically warrant dismissal of complaint and considering merits
of motion).
B.

Claims for Tax Years 1998, 1999, and 2004

The federal government cannot be sued absent a waiver of
sovereign immunity.

Federal Deposit Insurance Corp. v. Meyer, 510

U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields
the Federal Government and its agencies from suit.”); Kirsh v.
United States, 131 F. Supp. 2d 389, 391 (S.D.N.Y. 2000) (“It is
well established that under the doctrine of sovereign immunity, no
person may sue the federal government absent its consent to be
sued.”).

“[A] waiver of sovereign immunity must be ‘unequivocally

expressed’ in statutory text” and its scope is construed strictly
4

in favor of immunity.
U.S.

,

Federal Aviation Administration v. Cooper,

, 132 S. Ct. 1441, 1448 (2012); see Exxon Mobile

Corp. & Affiliated Cos. v. Commissioner of Internal Revenue, 689
F.3d 191, 201 (2d Cir. 2012).

“The terms of [the United States’]

consent to be sued in any court defines that court’s jurisdiction
to entertain that suit.”

Meyer, 510 U.S. at 475 (alteration in

original) (internal quotation marks omitted); Kirsh, 131 F. Supp.
2d at 391 (“If the delineated terms [of the waiver] are not met, a
court does not have jurisdiction over the action.”).
“‘Through 28 U.S.C. § 1346, Congress has broadly consented to
suits [seeking a refund of taxes allegedly erroneously assessed or
collected] against the U.S. in district courts.’”

Kirsh, 131 F.

Supp. 2d at 391 (alteration in original) (quoting United States v.
Forma, 42 F.3d 759, 763 (2d Cir. 1994)); see Clavizzao v. United
States, 706 F. Supp. 2d 342, 348 (S.D.N.Y. 2009).

However,

“[d]espite its spacious terms, § 1346(a)(1) must be read in
conformity

with

other

statutory

provisions

which

qualify

a

taxpayer’s right to bring a refund suit upon compliance with
certain conditions.”

United States v. Dalm, 494 U.S. 596, 601

(1990). First, prior to bringing suit in federal court, “26 U.S.C.
§ 7422(a) requires that a claim be ‘duly filed’ with the IRS,”
meaning a claim must be filed within the statute of limitations
prescribed by 26 U.S.C. § 6511 .

Kirsh, 131 F. Supp. 2d at 391

(internal footnote omitted); see United States v. Clintwood Elkhorn
Mining Co., 553 U.S. 1, 14 (2008) (holding that “plain language of
26 U.S.C. §§ 7422(a) and 6511 requires a taxpayer seeking a refund
5

for . . . unlawfully assessed tax, to file a timely administrative
refund claim before bring suit against the Government”).2 Further,
26 U.S.C. § 6532(a)(1) provides
No suit . . . under section 7422(a) for the recovery of
any internal revenue tax . . . 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, nor after the
expiration of 2 years from the date of mailing by
certified mail or registered mail by the Secretary to the
taxpayer of a notice of disallowance of the part of the
claim to which the suit . . . relates.
See also Clavizzao, 706 F. Supp. 2d at 348 (noting that plaintiff
suing for tax refund must bring suit in federal court within two
years of receiving notice from IRS that it denied refund). Because
the United States’s waiver of sovereign immunity is predicated on
timely filing of suit, the statute of limitations requirement is
jurisdictional.

See

Dalm,

494

U.S.

at

608

(“A

statute

of

limitations requiring that a suit against the Government be brought
within a certain time period is one of [the] terms [of its
waiver].”); Harriman v. Internal Revenue Service, 233 F. Supp. 2d
451, 457-58 (E.D.N.Y. 2002) (noting that “statutes of limitation
are jurisdictional in tax cases” and “if a statute of limitation
has not been complied with, Congress has not given consent to suit,
accordingly, absent compliance with such statute of limitations,
this Court lacks jurisdiction”); Costa v. Internal Revenue Service,
2

“A properly executed individual . . . original income tax
return or an amended return . . . shall constitute a claim for
refund or credit within the meaning of . . . section 6511 for the
amount of the overpayment disclosed by such return (or amended
return)” if it contains a statement about the amount of the
overpayment and how this amount should be refunded to the taxpayer.
26 C.F.R. § 301.6402-3(a)(5)
6

No. 97 CV 2688, 1999 WL 691899, at *3 (E.D.N.Y. Aug. 2, 1999)
(“[T]he well-established rule is that ‘the filing of a timely
refund claim is a jurisdictional requirement, which cannot be
waived.’” (quoting Rosenbluth Trading, Inc. v. United States, 736
F.2d 4, 47 (2d Cir. 1984)).
IRS and United States Postal Service records show that on
March 31, 2010, the IRS sent to Mr. Suvak by certified mail notices
of disallowance of claim for tax years 19983 and 1999.

(Letter of

Ann Hagemeyer Regarding Tax Period Dec. 31, 1998 dated March 31,
2010, attached as Exh. A to Declaration of Gennady Zilberman
(“Zilberman Decl.”); Certified Mailing Repository, Tax Period 1998,
attached as Exh. A to Declaration of Hildegard Grysiak (“Grysiak
Decl.”); Letter of Ann Hagemeyer Regarding Tax Period Dec. 31,
1999, attached as Exh. B to Zilberman Decl.; Certified Mailing
Repository, Tax Period 1999, attached as Exh. B to Grysiak Decl.).
The records also indicate that the IRS sent by certified mail a
notice of disallowance of claim for tax year 2004 on May 12, 2010.
(Letter of Ann Hagemeyer Regarding Tax Period Dec. 31, 2004 dated
May 12, 2010, attached as Exh. C to Zilberman Decl.; Certified
Mailing Repository, Tax Period 2004, attached as Exh. C to Grysiak
Decl.).

Accordingly, under 26 U.S.C. § 6532(a)(1), the time for

3

While Mr. Suvak appears to have appealed the notice of
disallowance with regard to his claim for tax year 1998 to the
Appeals Office (Compl., ¶ 12), it does not toll the two-year
statute of limitations.
See 26 U.S.C. § 6532(a)(4) (“Any
consideration, reconsideration, or action by the Secretary with
respect to such claim following the mailing of a notice by
certified mail or registered mail of disallowance shall not operate
to extend the period within which suit may be begun.”).
7

the plaintiff to file suit for claims related to tax years 1998,
1999, and 2004, expired on March 31, 2012 (for tax years 1998 and
1999), and May 12,

2012

(for tax year 2004).

Mr. Suvak brought

suit on August 6, 2012, after the statute of limitations has lapsed
for all three claims.

Moreover, he has not alleged that he entered

into a written agreement with the IRS to extend the time for filing
suit in accordance with 26 U.S.C.

§

6532 (a) (2),

nor do the IRS

records reflect that the parties entered into any such written
agreement.

(Zilberman Decl.,

as to tax years 1998,

1999,

~

6)

Thus, the plaintiff's claims

and 2004 are untimely and must be

dismissed.
Conclusion
For the foregoing reasons, the defendant's motion (Docket no.
8)

is granted,

and the plaintiff's claims as to 1998,

2004 are dismissed.

The case shall proceed with respect to the

remaining claims.

SO ORDERED.

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:

New York, New York
May 21, 2013

Michael E. Breslin, Esq.

250 W.

1999, and

57th St.

Suite 816

New York, NY 10107

8

Elizabeth Tulis, Esq.
Assistant United States Attorney
86 Chambers Street
New York, NY 10007

9