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SECOND CIRCUIT AFFIRMS IRS RETENTION OF ECONOMIC STIMULUS REBATE PURSUANT TO OIC.

MAY 2, 2012

Maniolos, Bertha Elizabeth v. U.S.

DATED MAY 2, 2012
DOCUMENT ATTRIBUTES
  • Case Name
    BERTHA ELIZABETH MANIOLOS Plaintiff-Appellant, v. UNITED STATES OF AMERICA Defendant-Appellee.
  • Court
    United States Court of Appeals for the Second Circuit
  • Docket
    No. 10-4933
  • Judge
    Per curiam
  • Cross-Reference
    For the district court opinion in Maniolos v. United States,

    No. 1:10-cv-03383 (S.D.N.Y. 2010), see Doc 2010-21742 or

    2010 TNT 193-8.

    For a related Second Circuit opinion in Sarmiento v. United

    States
    , Nos. 11-3752, 11-4495 (2nd Cir. 2012), see Doc

    2012-9361
    .
  • Parallel Citation
    469 Fed. Appx. 56
    2012-1 U.S. Tax Cas. (CCH) P50,331
    109 A.F.T.R.2d (RIA) 2081
  • Code Sections
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2012-9364
  • Tax Analysts Electronic Citation
    2012 TNT 86-11

Maniolos, Bertha Elizabeth v. U.S.

 

UNITED STATES COURT OF APPEALS

 

FOR THE SECOND CIRCUIT

 

 

SUMMARY ORDER

 

 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day of May, two thousand twelve.

 

Present:

 

Robert A. Katzmann,

 

Barrington D. Parker,

 

Richard C. Wesley,

 

Circuit Judges.

 

 

For Plaintiff-Appellant:

 

CARLTON M. SMITH, Director, Benjamin N. Cardozo School of Law Tax Clinic, New York, N.Y.

 

For Defendant-Appellee:

 

JAIMIE LEESER NAWADAY, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York. N.Y.

 

Appeal from the United States District Court for the Southern District of New York (Peck, Mag.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court be and hereby is AFFIRMED.

Plaintiff-Appellant Bertha Elizabeth Maniolos appeals from the October 7, 2010 judgment of the United States District Court for the Southern District of New York (Peck, Mag.),1 following an October 4, 2010 Opinion and Order granting the motion of Defendant-Appellee the United States to dismiss Maniolos's Complaint for failure to state a claim. In this action, Maniolos contends that the United States wrongfully withheld from her a $300 payment to which she was entitled under the Economic Stimulus Act of 2008 ("ESA"), Pub. L. No. 110-185, 122 Stat. 613 (Feb. 13, 2008) (codified at I.R.C. § 6428). We presume the parties' familiarity with the facts and procedural history of this case, as well as with the issues on appeal.

We review de novo a district court's dismissal of a complaint for failure to state a claim upon which relief can be granted, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted).

This appeal was heard by the Court in tandem with a related but not formally consolidated action, Sarmiento v. United States, Nos. 11-3752-cv(L), 11-4495(XAP), which we resolve by a separate Opinion filed simultaneously with this summary order. For the reasons expressed in that Opinion, we conclude that all of the arguments Maniolos makes on appeal are without merit and affirm the judgment of the district court. Notably, as we hold in Sarmiento, payments made to taxpayers under the ESA "constitute tax refunds under the OIC agreements' additional consideration provision" and "tax refunds made pursuant to the ESA apply to the 2007 tax year." Id., slip op. at 4 (2d Cir. May 1, 2012) (brackets and internal quotations omitted).

Accordingly, the judgment of the district court is hereby AFFIRMED.

For The Court:

 

 

Catherine O'Hagan Wolfe, Clerk

 

FOOTNOTE

 

 

1 The parties consented to assignment of this case for all purposes to the magistrate. See 28 U.S.C. § 636(c).

 

END OF FOOTNOTE
DOCUMENT ATTRIBUTES
  • Case Name
    BERTHA ELIZABETH MANIOLOS Plaintiff-Appellant, v. UNITED STATES OF AMERICA Defendant-Appellee.
  • Court
    United States Court of Appeals for the Second Circuit
  • Docket
    No. 10-4933
  • Judge
    Per curiam
  • Cross-Reference
    For the district court opinion in Maniolos v. United States,

    No. 1:10-cv-03383 (S.D.N.Y. 2010), see Doc 2010-21742 or

    2010 TNT 193-8.

    For a related Second Circuit opinion in Sarmiento v. United

    States
    , Nos. 11-3752, 11-4495 (2nd Cir. 2012), see Doc

    2012-9361
    .
  • Parallel Citation
    469 Fed. Appx. 56
    2012-1 U.S. Tax Cas. (CCH) P50,331
    109 A.F.T.R.2d (RIA) 2081
  • Code Sections
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2012-9364
  • Tax Analysts Electronic Citation
    2012 TNT 86-11
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