COURT OF FEDERAL CLAIMS DISMISSES CHALLENGE TO TAX LIABILITIES FOR LACK OF JURISDICTION.

Benjamin C. King, United States Department of Justice, Washington, DC, for defendant.

This lawsuit is plaintiffs' latest attempt to avoid the payment of federal income taxes. Because plaintiffs have not alleged any facts or cited any law that would bring their complaint within this court's jurisdiction, summary dismissal is appropriate.

Upon his release from prison, Mr. Cox filed several Federal Tort Claims Act suits in federal district court against the United States, the IRS, the United States Department of Justice, and the United States Probation Office.⁴ All three suits were dismissed, with the district court noting in one of its dismissal orders that Mr. Cox's true intent was to collaterally attack his criminal conviction. Mr. Cox appealed that dismissal order, and the United States Court of Appeals for the Fifth Circuit dismissed the appeal as frivolous.⁵ While that appeal was pending, Mr. Cox again attempted to challenge his criminal conviction based on his contention that he had no tax liability for the 1988, 1989, and 1990 tax years.⁶ The district court dismissed the suit, finding Mr. Cox's arguments to be frivolous.

In May 2004, the United States filed suit against plaintiffs in federal district court to collect the unpaid taxes for the 1988, 1989, and 1990 tax years.⁷ In that suit, the United States sought a judgment that plaintiffs owed back taxes, penalties, and interest in the amount of $320,926. It also sought a judgment that its tax liens were valid, that the tax liens could be foreclosed, that plaintiffs' property could be sold, and that the sale proceeds could be used to pay down plaintiffs' tax debt. As memorialized on the docket and in three reports and recommendations issued by the federal magistrate judge assigned to the case, plaintiffs filed a litany of motions and other documents in an attempt to avoid their tax liability. The district court rejected the arguments contained in those filings, concluding that plaintiffs owed the back taxes described by the United States, that the United States' tax liens were valid, and that plaintiffs' property could be sold to satisfy their tax debt. As a result, the United States foreclosed on plaintiffs' home, the proceeds were applied to plaintiffs' tax debt, and the district court issued a deficiency judgment against plaintiffs for the balance of that debt-$206,585.79.

In June 2005, while the collection action was pending, plaintiffs filed a voluntary petition for bankruptcy.⁸ The IRS filed a proof of claim for, among other things, the back taxes owed by plaintiffs for the 1988, 1989, and 1990 tax years. And, the United States Attorney's Office filed a proof of claim for the restitution owed by Mr. Cox as a result of his criminal conviction, which included the same back taxes sought by the IRS. Throughout the bankruptcy proceedings, plaintiffs continued to advance their argument that they had no tax liability for the 1988, 1989, and 1990 tax years. Plaintiffs eventually voluntarily dismissed their bankruptcy petition. The IRS then sent the bankruptcy trustee a notice of levy with respect to the funds being held by the trustee on plaintiffs' behalf. Plaintiffs challenged the IRS's authority to issue notices of levy, but the bankruptcy court concluded that the notice of levy sent to the trustee was proper and directed the trustee to turn over the funds in his possession to the IRS.

Then, in June 2010, Mr. Cox filed suit in another federal district court against, among others, the United States, the United States Department of the Treasury, the Treasury Inspector General for Tax Administration, and the IRS challenging his income tax liability.⁹ The district court rejected Mr. Cox's arguments and dismissed the suit. Plaintiffs subsequently turned their attention to the United States Court of Federal Claims ("Court of Federal Claims").

On June 13, 2012, thirteen years after Mr. Cox was ordered to pay back taxes to the IRS as restitution, plaintiffs filed the instant suit. They allege a wide variety of claims in their rambling, 106-page complaint, but the bottom line is that they do not believe that they are required to pay federal income taxes. They seek actual damages equal to the value of their property levied by the United States, punitive damages, statutory damages, an award for pain and suffering, declaratory and injunctive relief, and attorney's fees and costs. Plaintiffs also demand a jury trial.¹⁰ Notably, plaintiffs do not seek a refund of any income taxes that they have already paid.

Whether the court has jurisdiction to decide the merits of a case is a threshold matter. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties or the court sua sponte may challenge the existence of subject matter jurisdiction at any time. Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004).

When considering whether to dismiss a complaint for lack of jurisdiction, a court assumes that the allegations in the complaint are true and construes those allegations in the plaintiff's favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A pro se plaintiff's complaint, "'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers'. . . ." Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, a pro se plaintiff is not excused from meeting basic jurisdictional requirements. See Henke, 60 F.3d at 799 ("The fact that [the plaintiff] acted pro se in the drafting of his complaint may explain its ambiguities, but it does not excuse its failures, if such there be."). In other words, a pro se plaintiff is not excused from his or her burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

B. The United States as Defendant

As an initial matter, the court addresses plaintiffs' allegations against the IRS, the commissioner of the IRS, the Financial Management Service of the United States Department of the Treasury, an IRS employee, the Tax Inspector General for Tax Administration, the Tax Division of the United States Department of Justice, and the United States Attorney General. It is well settled that the United States is the only proper defendant in the Court of Federal Claims. See 28 U.S.C. § 1491(a)(1) (2006); R. U.S. Ct. Fed. Cl. 10(a); Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003). It necessarily follows that this court does not possess jurisdiction to hear claims against individual federal government officials. See Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997). Indeed, the jurisdiction of the Court of Federal Claims "is confined to the rendition of money judgments in suits brought for that relief against the United States, . . . and if the relief sought is against others than the United States, the suit as to them must be ignored as beyond the jurisdiction of the court." United States v. Sherwood, 312 U.S. 584, 588 (1941). Accordingly, plaintiffs' claims against all parties except the United States are dismissed for lack of jurisdiction.

C. Plaintiffs' Allegations

Plaintiffs allege that the United States has violated several amendments to the United States Constitution ("Constitution"), a wide range of federal statutes, and a number of federal regulations, clearly disregarding the limited ability of the Court of Federal Claims to entertain suits against the United States. It is axiomatic that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued." Id. at 586. The waiver of immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969).

The Tucker Act, the principal statute governing the jurisdiction of this court, waives sovereign immunity for claims against the United States, not sounding in tort, that are founded upon the Constitution, a federal statute or regulation, or an express or implied contract with the United States. 28 U.S.C. § 1491(a)(1). However, the Tucker Act is merely a jurisdictional statute and "does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398 (1976). Instead, the substantive right must appear in another source of law, such as a "money-mandating constitutional provision, statute or regulation that has been violated, or an express or implied contract with the United States." Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc). Thus, the court analyzes whether the amendments, statutes, and regulations cited by plaintiffs constitute money-mandating sources of jurisdiction.

Second, plaintiffs allege that the United States violated their right to due process under the Fifth and Fourteenth Amendments. But because neither Due Process Clause is money-mandating, they do not provide a basis for jurisdiction in this court. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); Mullenberg v. United States, 857 F.2d 770, 773 (Fed. Cir. 1988).

Third, plaintiffs contend that the requirement to submit an income tax return to the IRS under penalty of perjury violates their right against self-incrimination under the Fifth Amendment. The Fifth Amendment's Self-Incrimination Clause, however, does not provide for money damages and therefore does not constitute a basis for jurisdiction in the Court of Federal Claims. See Betz v. United States, 40 Fed. Cl. 286, 292-93 (1998).

Finally, plaintiffs contend that the United States' tax liens and levies constitute unreasonable seizures of their property under the Fourth Amendment. But, like the other amendments relied upon by plaintiffs, the Fourth Amendment's Search and Seizure Clause does not mandate the payment of money damages. Therefore, it cannot provide a basis for jurisdiction in the Court of Federal Claims. See Brown, 105 F.3d at 623; cf. Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) ("The Court of Federal Claims . . . does not have jurisdiction to hear . . . due process or seizure claims under the Fifth Amendment to the United States Constitution.").

In sum, the court lacks jurisdiction to entertain plaintiffs' constitutional allegations.

Plaintiffs further allege the violation of a number of statutes in the Internal Revenue Code, along with their implementing regulations, that concern tax assessment, tax collection, penalties, liens, and levies. See, e.g., 26 U.S.C. §§ 6201, 6212, 6301, 6303, 6321-6324, 63306331, 6334, 6501-6502, 6751, 7401-7403 (2006). However, the court's jurisdiction under the Internal Revenue Code is generally limited to the adjudication of tax refund suits,¹¹see 26 U.S.C. § 7422; 28 U.S.C. § 1346(a)(1), and this case is not such a suit. The court therefore lacks jurisdiction over plaintiffs' claims arising under the Internal Revenue Code.

D. Plaintiffs' Request for Relief

Plaintiffs request several types of relief: a writ of mandamus, declaratory and injunctive relief, and various forms of money damages. However, because plaintiffs have not asserted any claims against the United States over which this court has jurisdiction, they are not entitled to obtain any of their requested relief. Moreover, plaintiffs have not demonstrated that their right to a writ of mandamus is "clear and indisputable," Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976), and, except in situations not relevant here,¹² the court is not authorized to award declaratory or injunctive relief in the absence of an award of money damages, Nat'l Air Traffic Controllers Ass'n v. United States, 160 F.3d 714, 716 (Fed. Cir. 1998).

IT IS SO ORDERED.

²United States v. Cox, No. 2:98-cr-00391-SVW (C.D. Cal. filed Apr. 14, 1998).

³Cox v. United States, 225 F.3d 664 (9th Cir. 2000) (unpublished table opinion).

⁴Cox v. United States, No. 5:01-cv-00708-DK4 (W.D. Tex. filed Aug. 7, 2001); Cox v. United States, No. 5:01-cv-00350-HFG (W.D. Tex. filed Apr. 30, 2001); Cox v. United States, No. 5:00-cv-01433-HFG (W.D. Tex. filed Dec. 11, 2000).

⁵Cox v. United States, 48 F. App'x 105 (5th Cir. 2002) (unpublished per curiam opinion).

⁶Cox v. United States, No. 5:02-cv-00468-FB (W.D. Tex. filed May 14, 2002).

⁷United States v. Cox, No. 5:04-cv-00421-FB (W.D. Tex. filed May 12, 2004).

⁸In re Cox, No. 05-53666-LMC (Bankr. W.D. Tex. filed June 27, 2005).

⁹Cox v. United States, No. 2:10-cv-01302-JWS (D. Ariz. filed June 21, 2010).

¹⁰ The court is without authority to grant plaintiffs' request for a jury trial. "It has long been settled that the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government." Lehman v. Nakshian, 453 U.S. 156, 160 (1981).

¹¹ The Court of Federal Claims possesses jurisdiction to entertain a few other types of tax-related suits, but the statutes authorizing such suits do not apply to this case. See, e.g., 26 U.S.C. § 7428 ("Declaratory judgments relating to status and classification of organizations under section 501(c)(3), etc."); 28 U.S.C. § 1508 ("Jurisdiction for certain partnership proceedings").

¹²See 28 U.S.C. § 1491(a)(2) (providing the court with jurisdiction to issue, "as incident of and collateral to" an award of money damages, "orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records"); id. (providing the court with jurisdiction to render judgment in nonmonetary disputes arising under the Contract Disputes Act of 1978); id. § 1491(b)(2) (providing the court with jurisdiction to award declaratory and injunctive relief in bid protests).

¹³ Even if the court possessed jurisdiction over plaintiffs' complaint, almost all of plaintiffs' substantive allegations are frivolous. Indeed, they amount to nothing more than pedestrian tax protestor fare. It is well established that such contentions lack merit.