TAX PROTESTER-STYLE ARGUMENTS DISMISSED FOR LACK OF JURISDICTION/MERIT.

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

[1] William F. Bowman appeals pro se from the District Court's dismissal of his complaint on March 28, 2000. The allegations contained in Mr. Bowman's disorganized eighteen-page complaint arise out of his failure to submit tax returns for the tax years 1988-1991 and 1994. Mr. Bowman challenges the authority of the federal government to collect taxes from him, alleging that the authority to levy and collect taxes by the United States government and Internal Revenue Service ("IRS") is fraudulent and has been fraudulent since Thomas Jefferson's second term as President of the United States. Mr. Bowman claims that the government has no taxing authority because the State of Ohio was improperly admitted as a member state of the United States in 1803, the same year that the Sixteenth Amendment was ratified. ¹ On December 12, 1995, after affording the parties the opportunity to submit memoranda of law on the applicability of the standing and political question doctrines to Mr. Bowman's claims contesting Ohio's statehood, the District Court, sua sponte, dismissed these claims pursuant to Fed. R. Civ. P. 12(b)(6), holding that they were political in nature, and therefore non-justiciable. See Bowman v. Government of United States, 920 F.Supp. 623 (E.D. Pa. 1995). Consequently, the District Court ordered that "the complaint's claims are dismissed except to the extent that they related to the conduct of the Internal Revenue Service" and that "the action is dismissed as to all defendants except the United States, the Internal Revenue Service, the Secretary of the Treasury, and the Director of the Internal Revenue Service." ² The remainder of the allegations in Mr. Bowman's complaint stemmed from the conduct of the IRS concerning Mr. Bowman's lack of payment of back taxes for the tax years 1988-1991 and 1994. Mr. Bowman alleges the following: (i) the plaintiff's audit by the IRS was "incomplete" and "fraudulent"; (ii) IRS agents have improperly broken into the plaintiff's home and "carried off evidence of IRS wrongdoing"; (iii) the procedure provided for contesting the plaintiff's audit, which involves filing at the United States Tax Court, is improper, as there are no legal federal courts, and therefore no legal tax courts (the complaint describes the tax code as secretly deriving from the Napoleonic Code, in that it applies the presumption of guilt); (iv) the tax forms are "illegal constitutional contracts"; (v) the $300 fee that Mr. Bowman received for adding a hand-written statement above his signature on his tax form was unconstitutional; (vi) Mr. Bowman does not owe the government about $104,000 in back taxes, including interest and penalties; and (vii) the IRS owes Mr. Bowman a refund (with interest) from his 1983 return amounting to much more money than the IRS claims he owes them. The District Court granted defendants' dismissal motions, dismissing all of these claims as to all defendants on jurisdictional grounds or on their merits on March 30, 2000. Mr. Bowman filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. The District Court's dismissals for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) are subject to plenary review. See University of Maryland at Baltimore v. Peat. Marwick. Main & Co., 996 F.2d 1534, 1537-38 (3d Cir. 1993) (failure to state a claim); Freck v. Internal Revenue Service, 37 F.3d 986, 993 (3d Cir. 1994) (subject matter jurisdiction). In a motion to dismiss for failure to state a claim, the court evaluates the merits of the claims by accepting all allegations in the complaint as true, viewing them in the light most favorable to the plaintiff, and determining whether they state a claim as a matter of law. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1420 (3d Cir. 1997). A pro se complaint should not be dismissed for failure to state a claim 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. Hughes v. Rowe, 449 U.S. 5, 10 (1980). In reviewing a factual attack on the court's subject matter jurisdiction, the court may consider evidence outside the pleadings. Mortenson v. First Fed. Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). For the reasons that follow, we shall affirm.

[2] A liberal reading of Mr. Bowman's pro se complaint suggests that it challenges the constitutionality of the federal authority to lay and collect taxes under the Sixteenth Amendment by way of contesting Ohio's statehood. Construed as such, we find the claim to be meritless. As was correctly noted by the District Court, other circuit courts have rejected challenges similar to the one made here by Mr. Bowman. The Sixteenth Amendment was held to be constitutional by the Supreme Court in Brushaber v. Union Pacific Railroad Company, 240 U.S. 1 (1916), and "recognition of the validity of [that] amendment [has] continue[d] in an unbroken line." Parker v. Commissioner, 724 F.2d 469, 471 (5th Cir. 1984). Mr. Bowman's constitutional challenge to the Sixteenth Amendment based on the state of Ohio's official statutes is meritless. See Knoblauch v. Commissioner of Internal Revenue, 749 F.2d 200, 201 (5th Cir. 1984) (challenge to the legality of Ohio's statehood held to be "totally without merit"), cert. denied. 474 U.S. 830, 106 S.Ct. 95, 88 L.Ed.2d 78 (1985). Mr. Bowman's claims against the state defendants are also barred by the Eleventh Amendment to the U.S. Constitution. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). Mr. Bowman's claims against individual state defendants are barred by Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).

[3] With regard to Mr. Bowman's claims arising out of the conduct of the IRS and Mr. Bowman's failure to pay federal taxes, the District Court found that it lacked subject matter jurisdiction over claims (i), (vi) and (vii) because Mr. Bowman had failed to satisfy the prerequisites for filing suit in federal district court contesting the amount of tax imposed or claiming a refund. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature. Indeed, the 'terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit.'" See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). In this case, the District Court has no subject matter jurisdiction over a complaint challenging the assessment or collection of taxes unless certain jurisdictional prerequisites are met. United States v. Dalm, 494 U.S. 596, 601-602 (1990). In suits contesting the assessment or collection of taxes, a taxpayer must fully pay the tax assessments, including interest and penalties, before filing suit in District Court. See Flora v. United States, 357 U.S. 63 (1958); Psaty v. United States, 442 F.2d 1158 (3d Cir. 1971). Section 7422(a) of the Internal Revenue Code, 26 U.S.C. § 7422(a), requires that a claim for tax refund cannot be maintained in District Court unless and until the claim for refund (or credit) has been duly filed with the Internal Revenue Service. Here, it is undisputed that Mr. Bowman did not satisfy the requirement that he fully pay his taxes for the years 1988-1991 and 1994 prior to filing suit. See Flora v. United States, 357 U.S. at 68. Nor did he satisfy the express provisions of I.R.C. § 7422(a), which require that a person must file a claim for a refund with the Internal Revenue Service before filing suit in federal district court. The District Court correctly found that, even if the government owed Mr. Bowman a refund, the allegation of an overpayment of taxes in the year 1983 did not, itself, satisfy the pre-filing requirement that Mr. Bowman fully pay his taxes for the years 1988-1991 and 1994. We agree with the District Court that Mr. Bowman's claim for refund is meritless. With regard to Mr. Bowman's challenge of the IRS' imposition of a $300 penalty for his handwritten changes to the perjury clause/signature line on his tax forms, the District Court correctly found this claim to be lacking in merit. See Borgeson v. United States, 757 F.2d 1071, 1072 (10th Cir. 1985) (holding that perjury clause is constitutional and that penalty imposed for alteration of perjury clause on tax form was proper). Likewise, the District Court correctly found that Mr. Bowman's challenges to the constitutionality of the tax code and of the tax courts were equally meritless. See Sauers v. Commissioner of Internal Revenue, 771 F.2d 64, 69 n.6 (3d Cir. 1985); Denison v. Commissioner of Internal Revenue, 751 F.2d 241,242 (8th Cir. 1984). Finally, the District Court correctly dismissed Mr. Bowman's "breaking and entering" claim against IRS defendants. Mr. Bowman failed to assert a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. in his complaint. Even if he had, Mr. Bowman would still have been barred from suit under the FTCA because he did not present the claim first to the IRS before filing suit in federal district court. See 28 U.S.C. § 2675. For the foregoing reasons, we agree with the District Court's disposition of this matter and will, accordingly, affirm its orders dismissing all of Mr. Bowman's claims.

² Mr. Bowman named as defendants all fifty states, all fifty state governors and all fifty state legislatures, and all of their alleged co-conspirators, the United States, a number of executive officials, the federal judiciary (including the individual justices of the U.S. Supreme Court), and all of the members of the House of Representatives and the U.S. Senate (many of whom are named individually), their alleged co-conspirators, and "all United States citizens and all persons living within the jurisdiction of the United States who have allegiance to this government, [and] who give aid & comfort to . . . [the] United States."