Ellison v. United States, 78-3159-CV-S-4.
Decision Date | 14 May 1982 |
Docket Number | No. 78-3159-CV-S-4.,78-3159-CV-S-4. |
Citation | 558 F. Supp. 158 |
Parties | H.F. ELLISON, Jr. and Evelyn Ellison, Plaintiffs, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — Western District of Missouri |
David R. Fielder, Fielder, Jones, Conklin & Skinner, Robert T. Beezley, Springfield, Mo., for plaintiffs.
Kenneth Josephson, Asst. U.S. Atty., Kansas City, Mo., and Angelo I, Castelli, Trial Atty., Tax Div., Washington, D.C., for defendant.
Presently pending in this case is the defendant's motion to dismiss. Plaintiffs brought this action to recover federal withholding taxes paid by plaintiffs with their personal funds for corporate tax liabilities incurred in 1972 and 1973 by Bilnik's, Inc. In their amended complaint, plaintiffs allege that the Internal Revenue Service (IRS) misled and misinformed plaintiffs concerning their personal liability for Bilnik's, Inc.'s tax debt, and as a direct result thereof, plaintiffs allegedly paid the taxes in question when in fact, they were not personally liable for them. Plaintiffs now seek a refund of the tax payment. In an order dated September 2, 1980, the Court denied defendant's first motion to dismiss for lack of subject matter jurisdiction because, at that early stage of the proceedings, it was not apparent whether plaintiffs were claiming a refund for taxes paid by a third party, Bilnik's Inc., or by the plaintiffs personally. The defendant has again moved to dismiss or for summary judgment for lack of jurisdiction arguing that the plaintiffs lack standing because only the corporate taxpayer, Bilnik's, Inc., can bring a refund suit under the jurisdictional statute. Accompanying the defendant's renewed motions are exhibits showing that the taxes were assessed against Bilnik, Inc. rather than the plaintiffs (defendant's motion for summary judgment, Jan. 29, 1981, Appendix A-H, M) and that Bilnik's, Inc. paid the taxes with corporate checks (Appendix L). For the reasons discussed below, this case must be dismissed for lack of subject matter jurisdiction.
Plaintiffs amended complaint alleges that this Court has jurisdiction pursuant to 26 U.S.C. § 7422 and 28 U.S.C. § 1346. The former statute, however, does not grant this Court power to adjudicate claims for tax refunds; it is jurisdictional only in the sense that it requires a plaintiff to exhaust administrative remedies before filing a claim for a tax refund. In their suggestions in opposition to the defendant's motions to dismiss, plaintiffs more specifically allege that jurisdiction is predicated on the following portions of 28 U.S.C. § 1346:
Thus, the sole issue before this Court is whether plaintiffs' amended complaint is cognizable under § 1346(a)(1).
Section 1346(a)(1) of Title 28, U.S.C. not only grants this Court jurisdiction to adjudicate tax refund suits but also acts as a waiver of sovereign immunity. As such, the statute has received an extremely narrow construction. Bruno v. United States, 547 F.2d 71, 73 (8th Cir.1976) () See also: Eighth Street Baptist Church, Inc. v. United States, 431 F.2d 1193, 1194 (10th Cir.1970); Phillips v. United States, 346 F.2d 999, 1000 (2d Cir.1965).
In order to have the requisite standing to maintain a tax refund suit under § 1346(a)(1), plaintiff must be the one against whom the tax in question was assessed. In St. Paul National Bank v. United States, 320 F.Supp. 1066 (S.D.Iowa 1970), the Honorable Roy L. Stephenson, now a Judge of the Eighth Circuit Court of Appeals, explained:
320 F.Supp. at 1068. Accord: Busse v. United States, 542 F.2d 421, 424-425 (7th Cir.1976) (); Collins v. United States, 532 F.2d 1344, 1347-1348 n. 2 (Ct.Cl.1976); Hofheinz v. United States, 511 F.2d 661, 662 (5th Cir.1975); Hummell v. United States, 494 F.Supp. 1003, 1004 (S.D.Iowa 1980) ( ); Arndt v. United States, 493 F.Supp. 552, 553 (S.D. Tex.1980).
In the present case, plaintiffs...
To continue reading
Request your trial-
Barris v. US, Civ. A. No. 93-508.
...court to recover the amounts paid." Factory Storage v. United States, 611 F.Supp. 433, 435 (E.D.N.C.1985). See also Ellison v. United States, 558 F.Supp. 158 (W.D.Mo.1982). Other courts have found standing to exist in cases involving this issue on the basis that the person paying the tax di......
-
Brodey v. US, Civ. A. No. 86-1984S.
...paid husband's taxes to remove tax lien from wife's property has no standing to sue for refund of husband's taxes); Ellison v. United States, 558 F.Supp. 158 (W.D.Mo.1982) (plaintiffs who alleged that IRS representative misled and misinformed plaintiffs concerning their personal liability o......
-
Factory Storage Corp. v. United States
...assessment, Factory Storage is not a "taxpayer" entitled under these provisions to sue for a refund. See, e.g., Ellison v. United States, 558 F.Supp. 158, 160 (W.D. Mo.1982); Hummell v. United States, 494 F.Supp. 1003, 1004-05 (S.D.Iowa 1980). Factory Storage responds that the court has jur......
-
Martin v. U.S., 89-2036
...Eighth Street Baptist Church, 431 F.2d 1193 (10th Cir.1970); Phillips v. United States, 346 F.2d 999 (2d Cir.1965); Ellison v. United States, 558 F.Supp. 158 (W.D.Mo.1982). Some courts broadly viewing the jurisdictional purview of the statute have done so for equitable reasons to avoid barr......