Opinion
Civil Action No. 01-1077 (RWR).
June 4, 2004
MEMORANDUM OPINION
Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) arguing that the court lacks subject matter jurisdiction over plaintiff's claims because he did not timely file his claim for refunds, a condition of the United States's waiver of sovereign immunity. The provisions of 26 U.S.C. §§ 7422 and 6511 (2000) govern timely filing. Section 7422 provides that "[n]o suit shall be maintained in any court for the recovery of any internal tax revenue alleged to have been erroneously . . . assessed or collected . . . until a claim for refund or credit has been duly filed. . . ." Id. Section 6511 specifies what claims are "duly filed" and for which the United States has waived sovereign immunity: a claim must be filed "within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires" later. Id. at § 6511. Unless claims are filed in accordance with the time limits imposed in § 6511, there is no waiver of sovereign immunity and the claims may be barred. See United States v. Dalm, 494 U.S. 596, 608 (1990).
Plaintiff filed an opposition that offered no evidence to rebut defendants' assertion that he did not timely file his claim for refunds, and that the United States has not otherwise waived its sovereign immunity. Plaintiff merely asserted that he "has taken the position [that he has timely filed] in all aspects of this case, including his deposition by the United States. . . ." (Pl.'s Opp'n at 1.) This court directed plaintiff to file by May 28, 2004 a supplemental brief showing by the preponderance of the evidence that this court has subject matter jurisdiction over his claims. (See Order [27] for Supplemental Briefing of May 17, 2004.) Because defendants challenged facts bearing on this court's subject matter jurisdiction, the court explained to plaintiff that he must provide evidence that he timely filed refund claims with the IRS.
Plaintiff has failed to file any memorandum or submit any evidentiary support in response to the court's Order. Because plaintiff has not met his burden to show under Federal Rule of Civil Procedure 12(b)(1) that he timely filed a refund claim and that exercising subject matter jurisdiction over his claims is proper, defendants' motion to dismiss [20] will be granted.