United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
LEO I. BRISBOIS, Magistrate Judge.
This matter came before the undersigned United States Magistrate Judge upon Defendant's Motion to Dismiss. [Docket No. 10]. The motion has been referred to the undersigned Magistrate Judge for a report and recommendation, (see Order of Reference [Docket No. 7] (referring all dispositive and non-dispositive motions), pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a hearing on the Motion on February 10, 2014. (Minute Entry [Docket No. 22]). For reasons outlined below, the Court recommends that Defendant's Motion to Dismiss, [Docket No. 10], be GRANTED.
Dina Bryuhanova ("Plaintiff") initiated this action on or about August 12, 2013, by filing her complaint, [Docket No. 1], and her Application to Proceed In Forma Pauperis ("IFP"), [Docket No. 2]. In her Complaint, Plaintiff named as Defendant the Internal Revenue Service (the "Government" or "Defendant"), and claimed that she was improperly denied federal income tax refunds of $1, 282 for Tax Year 2005 ("TY2005"), and $3, 634 for Tax Year 2006 ("TY2006"). (Compl. [Docket No. 1], at 3-4). On August 13, 2013, this Court granted Plaintiff's IFP Application. (Order [Docket No. 3]).
On November 21, 2013, Defendant made its Motion to Dismiss, [Docket No. 10], which is presently before the Court.
II. MOTION TO DISMISS [Docket No. 10]
Defendant moves to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1); and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).
Plaintiff has been treated by a medical/psychiatric professional for unspecified mental and emotional issues since 2006. (Compl. [Docket No. 1], at 3). Plaintiff did not timely file tax returns for TY2005 and TY2006, but rather, she filed those tax returns on March 28, 2011, seeking a refund of $1, 282 for TY2005, and a refund of $3, 634 for TY2006. (Id.). However, each of those refunds was denied by the Internal Revenue Service ("IRS") by letters dated August 10, 2011,  on the grounds that Plaintiff sought her refunds more than three years after she paid her taxes. (Id.).
B. Standard of Review
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to seek to dismiss a claim for lack of federal subject matter jurisdiction. By making such a motion, the defendant "requires the Court to examine whether it has authority to decide the claims." Damon v. Groteboer , 937 F.Supp.2d 1048, 1063 (D. Minn. 2013) (Tunheim, J.).
A motion to dismiss under Rule 12(b)(1) can challenge a plaintiff's complaint either on its face or on the factual truthfulness of its assertions. Osborn v. United States , 918 F.2d 724, 729 n. 6 (8th Cir. 1990) ("A court deciding a motion under Rule 12(b)(1) must distinguish between a facial attack and a factual attack" (internal quotation and citation omitted)). When the defendant makes a facial attack:
[T]he court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6). The general rule is that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Id. (internal quotations and citations omitted; footnote added). Federal law provides that the U.S. District Courts and the Court of Federal Claims have original, concurrent jurisdiction over "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected...." 28 U.S.C. § 1346(a)(1).
1. The Federal Government generally is immune from suit.
The United States and its agencies are generally immune from suit under the doctrine of sovereign immunity. F.D.I.C. v. Meyer , 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."); United States v. Mitchell , 463 U.S. 206, 212 (1980) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction" (citing United States v. Sherwood , 312 U.S. 584, 586 (1941))); Manypenny v. United ...