Payne v. United States

• Decision Date: 27 August 2018
• Docket Number: No. 17-1661T,17-1661T
• Parties: EDWARD HAYWOOD PAYNE, JR., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

EDWARD HAYWOOD PAYNE, JR., Plaintiff, v. UNITED STATES, Defendant.

No. 17-1661T

United States Court of Federal Claims

August 27, 2018

ORIGINAL

Pro Se Plaintiff; Motion to Dismiss; Subject Matter Jurisdiction; Tort Claim; Fraud Claim; Tax Refund Claim.

Edward Haywood Payne, Jr., Philadelphia, PA, pro se.

Katherine R. Powers, Trial Attorney, Court of Federal Claims Section, Tax Division, United States Department of Justice, Washington, DC for defendant. With her were David I. Pincus, Chief, Court of Federal Claims Section, Tax Division, and Richard E. Zuckerman, Principal Deputy Assistant Attorney General.

OPINION

HORN, J.

FINDINGS OF FACT

On October 27, 2017, pro se plaintiff Edward Haywood Payne, Jr. filed a complaint in the above-captioned case in which plaintiff makes a vague claim concerning alleged negligence by the Internal Revenue Service (IRS) regarding an amended tax return, allegedly filed in plaintiff's name and without plaintiff's authorization. Plaintiff's complaint states "[t]he grounds for my claim is negligence on [sic] part of the Internal Revenue Service (IRS). The I.R.S [sic] processed not only a fraudulent claim in my name, but processed and paid a return to an unauthorized person. The amended return had no signature, let alone not even my signature." Plaintiff's complaint also states:

The Internal Revenue Service failed to protect my tax account, an inherent right as a Citizen of the United States of America, and a Tax Payer of the same. This failure resulted in my seeking of legal counsel causing me to lose - $3,200.00, and suffering damages of at least $6,400.00.

(capitalization in original). Plaintiff also vaguely claims in his complaint that an attorney named David Rubin misled plaintiff with regard to an undefined "agreement." Plaintiff's complaint states, "[t]he grounds for my claim against attorney David Rubin is that he intentionaly [sic] misled me into signing an agreement and subsequently being liable to pay his $3,200.00 fee by way of personal check. (USAA)." Plaintiff's complaint also is unclear regarding the amount of damages plaintiff is seeking. Plaintiff alleges that the IRS's failure to protect plaintiff's tax account "resulted in my seeking of legal counsel causing me to lose - $3,200.00, and suffering damages of at least $6,400.00." Plaintiff then requests under a separate section of his complaint titled "RELIEF" that the court award plaintiff a "total of $5,700.00," which plaintiff separates into "Attorneys Fees, $3,200.00," and "Tax Return $2,500.00." (capitalization in original).

Attached to the complaint is a letter dated June 20, 2017 from the IRS to plaintiff regarding plaintiff's "income Tax Liability" for the tax period ending on "12/2013." According to the June 20, 2017 IRS letter, the IRS Appeals Office in Philadelphia had completed a review of plaintiff's "claim for abatement and/or refund of taxes." The IRS appears to have denied plaintiff's "claim" and noted in the June 20, 2017 letter that "[s]ince no information was provided to support your claim, there is no basis to allow any part of your claim." Copied on the June 20, 2017 letter was "David N Rubin." In his complaint, plaintiff does not provide additional details about the June 20, 2017 letter.

On January 30, 2018, defendant, United States, filed a motion for a more definite statement pursuant to Rule 12(e) (2018) of the Rules of the United States Court of Federal Claims (RCFC), requesting that the court order plaintiff to amend the complaint and "provide more information about the nature of Plaintiff's suit." Specifically, defendant's motion noted that the complaint "omits the tax year in which Plaintiff alleges an unauthorized person filed an amended return in Plaintiff's name," and that "[p]laintiff has not satisfied Rule 9(m) which requires, among other things, that the complainant identify the tax year for which the refund is sought and provide a copy of the claim for refund to the Court." Defendant alleged that the deficiencies in plaintiff's complaint prevented defendant from understanding plaintiff's claim, "including whether this Court has subject-matter jurisdiction and whether Plaintiff intends to bring a claim for a tax refund and/or a claim pursuant to 31 U.S.C. § 3343 (providing recovery for a lost or stolen check)." (citation omitted).

On February 28, 2018, this court granted defendant's motion for a more definite statement, noting that plaintiff's complaint was vague and ambiguous and prevented meaningful review. The court stated in its February 28, 2018 Order that "plaintiff shall identify the time period in which plaintiff alleges '[t]he IRS processed not only a fraudulent claim in my name, but processed and paid a return to an unauthorized person.'" The court also stated that "if plaintiff is seeking a tax refund in the above-captioned case, plaintiff's claim for a tax refund shall comply with RCFC 9(m)." Additionally, the court's February 28, 2018 Order stated that plaintiff "shall specifically indicate [in the amended complaint] who is 'attorney David Rubin' and the role he played" in plaintiff's tax matters.

In accordance with the February 28, 2018 Order for a more definite statement, plaintiff filed a one and a half page, still vague, amended complaint on March 12, 2018.The first paragraph of the amended complaint, regarding plaintiff's interactions with attorney David Rubin, states:

On or about August 24, 2016 the plaintiff (Edward H. Payne Jr.) contacted Mr. Rubin via phone to discuss fraud on the personal tax account of the plaintiff. As a result, a meeting was set up with Mr. Rubin and the plaintiff. During the meeting Mr. Rubin assured the plaintiff that the 2014 tax return, which was filed about February 16, 2015, would be recovered of $2,509.00, as well as damages from both parties responsible for the fraud $3,200.00 each, totaling $6,400.00. After being assured these conditions the plaintiff signed an agreement with Mr. Rubin and wrote him a personal check for $3,200.00, on the spot in his office located at 1500 JFK Boulevard Ste 1900, Philadelphia, PA. 19102. The purpose of this agreement was for attorney David Rubin of Rubin & Rubin Tax Attorneys to provide full legal representation of the plaintiff.

(capitalization in original). The second paragraph of plaintiff's amended complaint, regarding a 2011 amended tax return, states:

The actual fraud occurred on the plaintiff's 2011 . . . tax return, where the 2011 tax return was amended by an unauthorized party and a dependent child was added. The original 2011 tax return was signed and authorized by the plaintiff and was filed about March 10, 2012, the 2011 amended return was not signed or authorized by the plaintiff. At these times 2011 and 2014 . . . the legal address of the plaintiff was 214 North 52^nd Street Philadelphia, PA. 19139. The tax ID # of the plaintiff is . . . and the refunds for 2011 and 2014 were filed in Philadelphia, PA., however the fraudulent return was file [sic] in New York, within the city limits of Mount Vernon the plaintiff believes. The fraudulent tax return listed an address of 214 North 42^nd Street Philadelphia, PA., an addressed [sic] never used by the plaintiff, nor never reflected on the plaintiff's drivers [sic] license. A report was also filed with the Philadelphia Police 19^th District located at 6059 Haverford Avenue 19151.

Along with his amended complaint, plaintiff included two copies of a letter dated December 27, 2016 from the IRS to plaintiff. The December 27, 2016 letter states in relevant part:

Dear Taxpayer:

WE COULDN'T ALLOW YOUR CLAIM

We disallowed your claim for credit for the period listed at the top of this letter [Tax Period: Dec. 31, 2011].

WHY WE CAN'T ALLOW YOUR CLAIM

We have reviewed your claim of identity theft (Identify Theft Affidavit or police report) and supporting documentation and have determined that you are not a victim of identity theft. It appears you or your representative filed the submitted return and did not include all of your income.

(capitalization in original). The December 27, 2016 letter also contained information informing the plaintiff as to how to appeal the IRS's decision. Plaintiff's amended complaint does not discuss the attached December 27, 2016 letter.

On April 26, 2018, defendant filed a "Partial Motion to Dismiss for Lack of Subject-Matter Jurisdiction" pursuant to RCFC 12(b)(1). Although the complaint and amended complaint are unclear as to the claims plaintiff is actually asserting even in his amended complaint, defendant's partial motion to dismiss extrapolated plaintiff's complaint into four separate claims. According to defendant's interpretation of plaintiff's pleadings, plaintiff had asserted four causes of action:

(1) [A] claim seeking damages against the IRS based in negligence; (2) a claim against the individual attorney David Rubin relating to his services; (3) a claim for a refund of taxes for the tax year ending in 2011, due to fraud; and (4) though somewhat unclear, a claim for a refund of taxes for the tax year ending in 2014.

Defendant argued that this court lacked subject matter jurisdiction over "Plaintiff's claim seeking damages against the IRS for negligence and his claim against attorney David Rubin," and defendant requested that the court grant defendant's partial motion to dismiss as to these two claims for lack of subject matter jurisdiction.

Defendant filed its current and updated partial motion to dismiss on June 28, 2018,¹ asserting that it is now seeking to dismiss three of plaintiff's four claims. In the June 28, 2018 partial motion to dismiss, defendant indicates that plaintiff had made four separate claims, as follows:

Claim One - a "Claim for Negligence Against the IRS"

Claim Two - a "Claim for Damages Against David Rubin"

Claim Three - an "Insufficiently Described Claim Relating to Tax Year 2014"

Claim Four - a "Tax Refund for the Year 2011"

(capitalization in original). Defendant moves to dismiss claims one and two for lack of...