United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the response of pro
se plaintiff Monica Napoli to the Court's Order to
Show Cause dated October 30, 2019. In that Order, the Court
granted plaintiff in forma pauperis status and then
directed her to show cause as to why this case should not be
dismissed for lack of subject matter jurisdiction. ECF No. 5.
Presumably in response to that Order, plaintiff filed a
document titled “Administrative Claim for
Refund.” ECF No. 6. Because the Court appears to lack
subject matter jurisdiction to decide this case, this action
will be dismissed without prejudice.
Monica Napoli filed this civil case against one defendant,
“Department of Treasury, Internal Revenue Service,
” alleging that defendant owes her $6, 547.00. ECF No.
1 at 1-2 & 4. Plaintiff states in her complaint as
The Plaintiff's 2018 Federal Income Tax Return was filed
and accepted by the Internal Revenue Service on February 27,
2019. The Plaintiff has requested of the Internal Revenue
Service why the tax return refund was being held and the
Internal Revenue Service has not given any reason whatsoever
why the tax return refund has not been issued to the
taxpayer. The Plaintiff is in dire need of the refund having
two young children and prays that a judgment be rendered
against the defendant.
Id. at 5. For relief, plaintiff requests $25, 000 in
damages for “careless and reckless behavior in holding
her refund 5 months for no reason.” Id.
October 30, 2019, the Court reviewed plaintiff's
complaint under 28 U.S.C. § 1915(e)(2) and found it
subject to dismissal for lack of jurisdiction because the
Internal Revenue Service (“IRS”) defendant is not
a suable entity. ECF No. 5 at 3. In addition, the Court found
that even if plaintiff had named the proper defendant - the
United States - it appears from the face of the complaint
that plaintiff has failed to exhaust her administrative
remedies with respect to her claim. As a result, the Court
ordered plaintiff to show cause in writing, within thirty
(30) days, why this case should not be dismissed for lack of
subject matter jurisdiction.
November 20, 2019, plaintiff filed a document titled
“Administrative Claim for Refund” in which she
states the same allegations verbatim as her complaint. ECF
No. 6. Plaintiff again requests “$25, 000 for careless
and reckless behavior” but she updates the time delay
in receiving her refund from 5 months to 9 months. Plaintiff
has filed nothing else in response to the Court's Order
to Show Cause.
stated previously by the Court, unless Congress has
specifically authorized an agency of the federal government,
such as the Internal Revenue Service (“IRS”), to
be sued in its own name, an action may not be maintained
against that agency. See Blackmar v. Guerre, 342
U.S. 512, 515 (1952). Congress has not specifically
authorized suit against the IRS. Therefore, it is not a
suable entity. See, e.g., Higgins v. U.S., 2003 WL
21693717 at *1 (E.D. N.Y. May 27, 2003) (holding that IRS was
not subject to suit in its own name); Frasier v.
Hegeman, 607 F.Supp. 318, 322 (N.D. N.Y. 1985) (holding
that a suit against the IRS is a suit against the United
States); Krouse v. U.S. Gov't Treasury Dep't
IRS, 380 F.Supp. 219, 221 (C.D. Cal. 1974) (holding that
the Department of the Treasury and the IRS are not entities
subject to suit). “District courts lack subject-matter
jurisdiction over claims against the Government to which
Congress has not consented.” Miller v. Tony &
Susan Alamo Found., 134 F.3d 910, 915-16 (8th Cir.
1998). Because the IRS cannot be subject to suit, a case
against the agency must be dismissed because this Court does
not have jurisdiction over the claims.
plaintiff had filed suit against the proper defendant, the
United States, it appears that plaintiff has failed to
exhaust her administrative remedies with respect to her
claim. Pursuant to § 7422 of Title 26 of the United
States Code, a taxpayer may only file suit for a refund after
the taxpayer has filed an administrative claim for a refund.
Specifically, the Code states:
No suit or proceeding shall be maintained in any court for
the recovery of any internal revenue tax alleged to have been
erroneously or illegally assessed or collected, or of any
penalty claimed to have been collected without authority, or
of any sum alleged to have been excessive or in any manner
wrongfully collected, until a claim for refund or credit
has been duly filed with the Secretary, according to the
provisions of law in that regard, and the regulations of the
Secretary established in pursuance thereof.
26 U.S.C. § 7422(a) (emphasis added). Compliance with
these requirements is jurisdictionally required of the
taxpayer before initiating a lawsuit.
instant case, plaintiff fails to state any facts to meet the
jurisdictional requirements of the statute. Plaintiff claims
that she “requested” the IRS tell her why she has
not received her refund, but she does not assert that she has
filed a timely claim for a refund. See ECF Nos. 1,
6. Plaintiff's attempt to file an Administrative Claim
with this Court (ECF No. 6) in response to the Court's
Order to Show Cause, is not sufficient. As stated in the Code
above, the claim for a refund must be filed with the
“Secretary.” 26 U.S.C. § 7422(a). The term
“Secretary” refers to the “Secretary of the
Treasury or his delegate.” 26 U.S.C. §
7701(a)(11)(B). Filing a document with this Court titled
“Administrative Claim for Refund, ” does not