NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

DAVID LEE SMITH, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2012-5074 

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no. 10-CV-218, Judge Edward J. Damich. 

__________________________ 

Decided: August 10, 2012 

__________________________ 

DAVID LEE SMITH, of Denver, Colorado, pro se. 

CURTIS C. PETT, Attorney, Tax Division, United States 

Department of Justice, of Washington, DC, for defendantappellee. With him on the brief were KATHRYN KENEALLY, 

Assistant Attorney General, and TERESA E. MCLAUGHLIN, 

Attorney. Of counsel was JENNIFER DOVER SPRIGGS. 

__________________________ 

Before LOURIE, REYNA, and WALLACH, Circuit Judges. 
SMITH v. US 2

PER CURIAM. 

Plaintiff-Appellant pro se, David Lee Smith, challenges the dismissal of his case for lack of subject matter 

jurisdiction. Mr. Smith seeks to recover federal taxes 

alleged to have been erroneously or illegally assessed or 

collected. Upon careful consideration and for the reasons 

outlined below, we affirm. 

I. 

This case involves a long-standing tax dispute between Mr. Smith and the Internal Revenue Service 

(“IRS”). Because the background of this case is exceedingly complex and the tax years at issue herein have been 

the subject of prior disputes, only portions relevant to our 

holding are recited herein. 

Mr. Smith and Ms. Hook, who are both attorneys, 

filed petitions in the Tax Court seeking redetermination 

of income tax deficiencies and additions to tax asserted 

against them for tax years 1992 to 1996 arising from joint 

returns filed for those years.1 The Tax Court dismissed 

the suit for failure to prosecute and entered judgment 

against them, upholding the deficiencies and penalties as 

determined by the IRS. Mr. Smith moved the Tax Court 

for leave to file an untimely motion to vacate its decision, 

which the Tax Court denied. Mr. Smith appealed to the 

Tenth Circuit, which affirmed the Tax Court and imposed 

$6,000 in sanctions on Mr. Smith and Ms. Hook for filing 

a frivolous appeal. 

Mr. Smith and Ms. Hook next filed a petition for relief 

under Chapter 11 of the Bankruptcy Code and com-

 1 Mr. Smith and Ms. Hook remain married but have 

been separated since 1998. Mr. Smith and Ms. Hook filed 

joint income tax returns for the relevant time periods 

discussed herein. 
3 SMITH v. US

menced an adversary proceeding seeking to, inter alia, 

relitigate their tax liabilities for tax years 1992 to 1998. 

The Bankruptcy Court dismissed the adversary proceeding, and the District Court affirmed. Mr. Smith and Ms. 

Hook appealed this decision to the Tenth Circuit. Ms. 

Hook voluntarily dismissed her appeal, and Mr. Smith’s 

appeal was dismissed due to his failure to pay the sanctions imposed upon him in the prior appeal. Ms. Hook 

ultimately settled with the IRS, but Mr. Smith refused to 

settle, seeking, inter alia, to relitigate his tax liabilities 

for tax years 1992 to 1996 and claiming entitlement to 

“innocent spouse” relief from joint and several liability 

under § 6015. 

In 2007, Mr. Smith and Ms. Hook filed a petition in 

the Tax Court challenging income tax deficiencies and 

penalties for tax years 2001 to 2005. They also filed a 

joint motion for a refund of amounts that the IRS had 

collected since the filing of their petition on September 7, 

2007, on the ground that those collections violated § 

6213(a).2 The IRS submitted documents indicating that 

no amounts had been collected with respect to the deficiencies for tax years 2001 to 2005 that were subject of 

the pending action. 

On April 9, 2010, Mr. Smith filed the instant refund 

suit in the Court of Federal Claims, seeking to recover 

taxes alleged to have been erroneously assessed or collected for tax years 1992 to 1996 and 2000 to 2006.3 At a 

 2 Section 6213(a) of the Internal Revenue Code prohibits the collection of a deficiency while a Tax Court 

petition for redetermination of the deficiency is pending. 

3 Mr. Smith claimed that this filing divested the 

Tax Court of jurisdiction pursuant to § 6015(e)(3). The 

Tax Court rejected this argument, characterizing it as a 

delay tactic, and the Tenth Circuit affirmed. 
SMITH v. US 4

preliminary status conference, the government informed 

the Court of Federal Claims of its intention to file a 

motion to dismiss for lack of jurisdiction. Mr. Smith 

asserted that discovery would be required before the 

motion could be decided. The Court of Federal Claims 

informed Mr. Smith that if he thought the motion raised 

issues that necessitated discovery, he should clearly 

identify those issues in his response. The government 

moved to dismiss Mr. Smith’s suit for lack of subject 

matter jurisdiction on February 3, 2011, and the Court of 

Federal Claims granted the motion because, inter alia, it 

found that Mr. Smith had already challenged the deficiencies for tax years 1992 to 1996 and 2001 to 2005 in 

the Tax Court and had not paid the full amount of the 

deficiency relating to tax year 2006 before filing suit, as is 

required. It denied Mr. Smith’s motion to amend or 

supplement his amended complaint to include the proper 

jurisdictional statement and/or to transfer the case to the 

United States District Court for the District of Colorado 

pursuant to 28 U.S.C. § 1631. It also denied his motion 

for reconsideration of the Court’s earlier decision denying 

his discovery request. Mr. Smith moved for relief under 

Court of Federal Claims Rule (“RCFC”) 60(b), but the 

Court of Federal Claims denied the motion. 

This appeal followed. The sum and substance of Mr. 

Smith’s appeal is his contention that the Court of Federal 

Claims erred by granting the government’s motion to 

dismiss, denying his request to amend or supplement his 

complaint and/or to transfer his case, and denying his 

motion for relief under RCFC 60(b). We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(3). 

II. 

This Court reviews de novo a decision by the Court of 

Federal Claims to dismiss for lack of subject matter 
5 SMITH v. US

jurisdiction. See Schell v. United States, 589 F.3d 1378, 

1381 (Fed. Cir. 2009). As the plaintiff, Mr. Smith bears 

the burden of establishing jurisdiction by preponderant 

evidence. Id. When deciding a motion to dismiss for lack 

of subject matter jurisdiction, the court must assume 

as true all undisputed allegations of fact made by the 

nonmovant and draw all reasonable inferences from those 

facts in the nonmovant's favor. See Henke v. United 

States, 60 F.3d 795, 797 (Fed. Cir. 1995). If the Court of 

Federal Claims determines at any time that it lacks 

subject matter jurisdiction, it must dismiss the action. 

RCFC 12(h)(3). 

According to the Tucker Act, the Court of Federal 

Claims: 

shall have jurisdiction to render judgment upon 

any claim against the United States founded either upon the Constitution, or any Act of Congress 

or any regulation of an executive department, or 

upon any express or implied contract with the 

United States, or for liquidated or unliquidated 

damages in cases not sounding in tort. 

28 U.S.C. § 1491(a)(1). 

To be cognizable under the Tucker Act, the claim 

must be one for money damages against the United 

States, and the plaintiff must demonstrate that the source 

of substantive law upon which he or she relies is a moneymandating source. See Ferreiro v. United States, 501 F.3d 

1349, 1351 (Fed. Cir. 2007). However, the Tucker Act 

does not, by itself, create a substantive right enforceable 

against the United States for monetary relief. Id. The 

plaintiff must identify a separate contract, regulation, 

statute, or Constitutional provision, which, if violated, 

provides for a claim for money damages against the 

United States. Id.
SMITH v. US 6

A.

With regard to tax disputes, 28 U.S.C. § 1346(a)(1) 

provides for concurrent jurisdiction in the federal district 

courts and the Court of Federal Claims with respect to 

“[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 . . . under the 

internal-revenue laws. . .” However, § 6512(a) bars a suit 

for refund involving a tax year for which a Tax Court 

petition contesting a deficiency determination has been 

filed. See Solitron Devices v. United States, 862 F.2d 846, 

848 (11th Cir. 1989) (“A bar to the exercise of jurisdiction 

by the district court over a tax case is triggered when the 

taxpayer files a petition with the Tax Court.”). Here, the 

Court of Federal Claims correctly found that §6512(a) 

precluded it from exercising jurisdiction because Mr. 

Smith had previously filed Tax Court petitions seeking 

redetermination of the same liabilities.4 

B. 

When a taxpayer is assessed with an income tax deficiency, he may challenge that assessment in one of two 

ways. One way is to pay the tax, request a refund from 

the IRS, and then file a refund suit in the Court of Federal Claims or in a district court. I.R.C. § 7422(a). The 

Court of Federal Claims lacks jurisdiction over a tax 

refund suit unless the assessment has been fully paid. 

See Ledford v. United States, 297 F.3d 1378, 1382 (Fed. 

Cir. 2002). In the alternative, the taxpayer can file a 

petition with the Tax Court without paying the assessment. See Flora v. United States, 362 U.S. 145, 163 

(1960). With certain exceptions, if a taxpayer properly 

 4 Section 6512(a) provides for certain exceptions, 

but Mr. Smith failed to identify facts to support his conclusory assertions that those exceptions apply. 
7 SMITH v. US

files a petition with the Tax Court, he cannot later file a 

claim in the Court of Federal Claims or in a district court 

to obtain a credit or refund for the same taxable year. 

I.R.C. § 6512(a). 

Here, the Court of Federal Claims properly dismissed 

Mr. Smith’s claim for lack of subject matter jurisdiction 

because the government submitted evidence demonstrating that Mr. Smith failed to satisfy the full payment rule. 

Mr. Smith offered no documentary evidence, such as a 

receipt or cancelled check proving that he had fully satisfied the assessment, and his self-serving speculation or 

testimony in that regard is insufficient to satisfy his 

burden to establish jurisdiction over his claims by preponderant evidence. The Tax Court found that Mr. 

Smith’s arguments lacked merit and that he had failed to 

show that the IRS records demonstrating the failure were 

incorrect. 

C. 

The Appellant’s “innocent spouse” contentions are 

similarly unsupportable. The requested relief arises out 

of a deficiency proceeding originally filed in the Tax Court 

according to I.R.C. § 6513(a), but Mr. Smith later sought 

to establish jurisdiction in the Court of Federal Claims 

pursuant to § 6015(e)(3). The Court of Federal Claims was 

correct not to exercise jurisdiction where, as here, the 

pending suit cannot be reconciled with the “innocent 

spouse” requirements provided in § 6015(e)(3).5 

 5 Section 6015(e)(3) applies where one spouse files a 

“stand alone” action for “innocent spouse” relief and either 

spouse thereafter files a refund suit in the district court or 

the Court of Federal Claims. In that situation, the court 

in which the refund suit is filed acquires jurisdiction over 

all issues for the tax year in question. I.R.C. § 6015(a)-(e) 

(setting forth statutory requirements). 
SMITH v. US 8

Mr. Smith filed suit in the Court of Federal Claims 

shortly before the Tax Court was scheduled to hold a trial 

for his tax deficiencies for the years 2001 to 2005. Jurisdiction under § 6015(e)(3), however, is directed at situations where “stand-alone” proceedings are brought in 

response to a refund suit. See § 6015(e)(3) (limiting the 

statutory relief to suits for a refund). For the years 2001 

through 2005, Mr. Smith requests relief in response to a 

notice of deficiency, yet he opted not to proceed in the 

Court that has sole jurisdiction over such claims. See § 

7402(e) (providing the Tax Court with sole jurisdiction 

over petitions responding to a notice of deficiency). As 

such, the Court of Federal Claims has no jurisdiction over 

the contested tax liabilities from 2001 through 2005. 

There is also no evidence in the record that would 

tend to show Mr. Smith as an “innocent spouse.” To the 

contrary, joint and several liability is appropriate in this 

case since Mr. Smith has been on notice of all tax returns 

made in his name. Appellant’s knowledge of the prior 

filings and proceedings belies his “innocent spouse” arguments. 

III. 

This Court reviews the denial of a discovery request 

for abuse of discretion. See Rick’s Mushroom Serv., Inc. v. 

United States, 521 F.3d 1338, 1342 (Fed. Cir. 2008). 

Here, the Court of Federal Claims properly denied Mr. 

Smith’s request for discovery because it found that he 

failed to explain with sufficient specificity how discovery 

would help him overcome the various jurisdictional bars 

to his suit, which are outlined above, and thus, permitting 

discovery would likely have unnecessarily delayed resolution of the matter.6 Mr. Smith did not identify facts that 

 6 Despite Mr. Smith’s arguments to the contrary, 

even if the government’s filing of exhibits along with its 
9 SMITH v. US

would support his claims for jurisdiction or explain how 

the documents he requested would show that the Court 

had jurisdiction. 

IV. 

Mr. Smith argues that the Court of Federal Claims 

abused its discretion by denying his request to amend or 

supplement his complaint to include a proper jurisdictional statement. We review a decision of the Court of 

Federal Claims to deny a motion for leave to amend a 

pleading for an abuse of discretion. See Renda Marine, 

Inc. v. United States, 509 F.3d 1372, 1379 (Fed. Cir. 

2007). “An abuse of discretion occurs when a court misunderstands or misapplies the relevant law or makes 

clearly erroneous findings of fact.” Id. 

The Court of Federal Claims did not err in denying 

Mr. Smith’s request because, as it explained, Mr. Smith 

had no meritorious basis upon which to bring his claims, 

and the jurisdictional bars that prevented the Court of 

Federal Claims from having jurisdiction would have 

likewise precluded a district court from having jurisdiction. 

V. 

Mr. Smith also appeals the decision of the Court of 

Federal Claims denying his motion for relief from the 

judgment under RCFC 60(b) on the ground that the Court 

of Federal Claims had no arguable basis for dismissing 

his suit. We review the denial of a motion for relief from 

 

motion to dismiss had converted the motion to dismiss 

into a motion for summary judgment, that conversion 

would only entitle Mr. Smith to “a reasonable opportunity 

to present all the material that is pertinent to the motion,” not to engage in a fishing expedition for information 

that would not establish jurisdiction. RCFC 12(d). 
SMITH v. US 10

the judgment for abuse of discretion. See Patton v. Sec’y 

of Dep’t of Health & Human Servs., 25 F.3d 1021, 1029 

(Fed. Cir. 1994). The Court of Federal Claims may relieve 

a party from a final judgment where it deems the judgment to be void. RCFC 60(b)(4). Rule 60(b)(5) permits a 

party to obtain relief from a judgment or order if, inter 

alia, “applying [the judgment or order] prospectively is no 

longer equitable.” It provides a means by which the Court 

of Federal Claims can modify or vacate a judgment or 

order where a significant change in the factual conditions 

or legal landscape renders continued enforcement of the 

judgment or order harmful to the public interest. See 

Horne v. Flores, 129 S. Ct. 2579, 2593 (2009) (discussing 

analogous Federal Rule of Civil Procedure 60(b)(5)). Rule 

60(b)(6) is a catchall provision that enables the Court of 

Federal Claims to grant relief from a judgment “for any 

other reason that justifies relief.” It is generally available 

only in the presence of extraordinary circumstances. See 

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 

863 (1988) (quotation omitted) (discussing analogous 

Federal Rule of Civil Procedure 60(b)(6)). 

Here, the Court of Federal Claims properly denied 

Mr. Smith’s motion for relief from the judgment because it 

had jurisdiction to determine whether it had jurisdiction, 

and that decision was correct for the reasons explained 

above. Mr. Smith challenged the legal conclusions of the 

Court of Federal Claims, rather than demonstrating that 

a change in the facts or law made enforcement of the 

judgment detrimental to the public interest. His dissatisfaction with the judgment does not constitute the type of 

“extraordinary circumstances” that warrant granting 

Rule 60(b)(6) relief. 
11 SMITH v. US

VI. 

Mr. Smith also appeals the decision of the Court of 

Federal Claims denying his request to transfer his case to 

a district court. We review the denial of a request to 

transfer a claim to another court for abuse of discretion, 

while a finding that the transferee court would lack 

jurisdiction is reviewed de novo. See Rick’s Mushroom 

Serv., 521 F.3d at 1343. 28 U.S.C. § 1631 provides that if 

a civil action is filed in a court that lacks jurisdiction, the 

court may, if it is in the interest of justice, transfer the 

action to another court in which the action could have 

been brought if the transferee court would have jurisdiction. 

Here, it was not an abuse of discretion for the Court of 

Federal Claims to deny Mr. Smith’s transfer request 

because sovereign immunity and § 6512(a) would bar Mr. 

Smith’s suit in any court. In some circumstances, a court 

may transfer a case under 

§ 1631 if a plaintiff’s claim would be time-barred if the 

case were dismissed. See Tex. Peanut Farmers v. United 

States, 409 F.3d 1370, 1374 (Fed. Cir. 2005). But that 

assumes plaintiff’s claim could otherwise stand if the 

statute of limitations had not run. See id. Transfer of Mr. 

Smith’s claim would not remove the jurisdictional bar. 

We have considered Mr. Smith’s other arguments 

made on appeal and find that they provide no basis for 

relief. We order payment by Mr. Smith to the United 

States for the reasonable costs for printing, copying, and 

the like incurred by the United States in defending the 

appeal before this court. 

For the foregoing reasons, the decision of the Court of 

Federal Claims is hereby 

AFFIRMED 
SMITH v. US 12

COSTS

Costs imposed on Appellant as set forth above.