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BAHIGF. BISHA Y,

V. (Pro Se) No. #18-1665C (Filed: September 16, 2019 

## INot for Publication)

Plaintiff, ) ) ) Keywords: I.RC. § 6672; Token ) Payment; Tax Refund; Motionto Dismiss; ) Subject-MatterJurisdiction; Pro Se ) ) THE UNITED STATES OFAMERICA, ) Received • USCFC ) Defendant.

## ~ SEP 1 62019



## _ __ ___ ___ _ _ ___ __ )

Bahig F. Bishay, Norwood, MA, pro se. CourtneyM Hutson, Trial Attorney, U

.S. Depai1ment ofJustice, Tax Division, CourtofFederal Claims Section, Washington, D.C., with whom wereRichardE. Zuckerman, Principal Deputy AssistantGeneral and DavidI Pincus, Chief, Court ofFederal Claims Section, for Defendant.
OPINION AND ORDER
KAPLAN,Judge. Presently beforethe CourtarePlaintiffBahigBishay's motion for leaveto proceed in forma pauperis, DocketNo. 4, and the government's motionto dismisspursuant to Rule 12(b)(l) oftheRules ofthe Com1 ofFederal Claims ("RCFC"), Def.'sMot. to Dismiss ("Defs. Mot.") at 1, DocketNo. 23. Forthe reasons thatfollow, Plaintiffsmotionfor leaveto proceed informa pauperis is GRANTED. The government's motion to dismiss is likewise GRANTED and Plaintiffs complaint is DISMISSED without prejudice for lack ofsubject-matterjurisdiction.
DISCUSSION 

### I. Motion for Leave to Proceed In Forma Pauperis
Mr. Bishayrequeststhatthe Comtallowhimtoproceed in formapauperis. Pursuantto 28 U.S.C

. § 1915(a)(l), "any com1 ofthe United Statesmay authorize the commencement

...of any suit, actionorproceeding

... withoutprepayment offees or security therefor, by a person who submits an affidavitthat includes a statement

...thatthe person isunableto pay suchfeesor give security therefor." 1A plaintiffdoes not have to "be absolutely destitute to enjoy the benefit ofthe statute." Adkins v. E.I. DuPont De Nemours & Co. 335 U.S. 331,339 (1948). An affidavitthat demonstrates that a plaintiffis unable to pay the fee or give security and still provide for himselfand any dependents is sufficient. See id.; Waltner v. United States 93 Fed. Cl. 139, 143 (2010) (stating thatthe question is whether "paying such fees would constitute a serious hardship on the plaintiff').
Mr. Bishay states in his applicationthat he currently has $I,200 in cash or bank accounts. Pl.'s Appl. To Proceed In FormaPauperis at 2, Docket No. 4. He is currently unemployed and receives Social Securitybenefits inthe amount of"$I,420/mo." Id. at 2. Under these circumstances, Mr. Bishayhas sufficiently demonstrated that he is unable to pay the court's filing fee. His application to proceed in fornm pauperis is therefore GRANTED. 

### II. Background PlaintiffBahig Bishay, appearing prose, filed a complaint inthis comi on October 17, 20I8, alleging thatthe Internal Revenue Service ("the IRS") "arbitrarily, maliciously, and unjustly," recorded a tax lien againsthim in the amount of$41,612.40. Comp!. 

### ,i,i 2, 5, Docket No. 1. He contends thatthe lien was based on an inaccurate allegation by the IRS that Commonwealth Auto Company, Inc. ("Commonwealth Auto"), a company for which he had
once been the president and sole shareholder, had failed to collect, account for, and pay over certainpayroll taxes for the first two quarters of2002. Id. 

### ,i 2. Mr. Bishay challenges the IRS's determinations that Commonwealth Auto-which subsequently filed for bankruptcy-neverpaid overthe taxes and/or that he bears responsibility for theirpayment. Id.
The IRS assessed a penalty against Mr. Bishay onFebruary 5, 2007 in accordance with I.R.C. § 6672. Def.'s Mot. Ex. 1, at I (IRS transcript for Bahig Bishayindicatingthat an I.R.C. trust fund recovery penalty was assessed February 5, 2007); see also Comp!. Ex. I, at 31-36 (CP15B notices informing Mr. Bishaythatpenalty was assessed for tax periods ending March 31 and June 30, 2002).2 The lien at issue was recorded on August 29, 2013. Comp!. Ex. I, at 37 (notice offederal tax lien). In its February 5, 2007 notices, the IRS advised Mr. Bishay ofhis rightto file a suit for a refund. Id. at 31, 34. The notices instructed him that, to do so, he must

1For purposes of28 U.S.C. § 1915, the Comi ofFederal Claims is a court ofthe United States. 28 U.S.C. §2503(d). 2I.R.C. § 6672(a) provides that a person is subject to a 100%tax penalty ifhe "willfully fails to collect[], ortruthfully account for and pay over[], orwillfully attempts in any manner to evade or defeat" such tax which he is "required to collect, truthfully account for, and pay over." See also Godfrey v. United States, 748 F.2d 1568, 1573-74 (Fed. Cir. 1984) (discussingthe elements ofa penalty under I.R.C. § 6672). In other words, the statute imposes personal liability on officers or employees ofa company who are responsible for collecting federal income and social security taxes withheld from employees' paychecks. See Def.'s Mot. at 2. The government refers to this penalty as a "trustfund recovery penalty." Id.

2"paythe withheldtax for one employee for one quarter ofliability" and also must "file a claim for refund on Form 843

... for the amount paid by March 7, 2007." Id. 3
The IRS's instruction that Mr. Bishay must pay the withheldtax for one employee for
one qumier ofliability stems from the requirementthat, to invoke this Couti'sjurisdiction in a tax refund suit, a plaintiffmust comply withthe "full payment rule"-i.e., he must demonstrate that the principal tax deficiency was paid in full. See Shore v. United States, 9 F.3d 1524, 1526- 27 (Fed. Cir. 1993); Jacksonv. United States, 143 Ft,d. Cl. 242,246 (2019). Where, as here, the tax in question involves a § 6672 penalty, the plaintiffcan satisfy the full paymentrule bypaying the "IRS an amount equal to one employee's withholding for one qumier." Virv. United States, 125 Fed. Cl. 293,301 (2016) (citing Godfrey v. United States, 748 F.2d 1568, 1573 (Fed. Cir. 1984)),
Mr. Bishay alleges in his complaint that in July 2015 he made a "token"payment to the IRS "pursuant to the federal authority explained inWeber v. Commissioner, 138 T.C. 348,363 n. 12 (2012)." Comp!. 

## ,r,r 7, 24; see also Comp!. Ex. 1, at 44 (letter dated July 23, 2015 from Mr. Bishay to the IRS notingthat "appendedherewith [are] two re-dated 843 Forms, together with 'token' payment in the sum of$100.00 U.S. Dollars"). The referenced footnote in the Weber decision states that "ataxpayermay litigate the penalty after having paid an amount corresponding to the tax withheld from a single employee." 138 T.C. at 363 n.12. The IRS's ce1iified transcript for Mr. Bishay's account reveals that he made a $100 paymenttoward his trust fund penalty liability on August 7, 2015. Def.'s Mot. for a More Definite Statement, Ex. 1, at 2, DocketNo. 20.
The government filed a motion for a more definite statement onMay 24, 2019 asking Mr. Bishayto put forth facts to show thatthe $100 paymentwas equivalentto the tax due for one employee for one qumier ofliability. The government observed that certain payroll records provided as exhibits to the complaint cast doubt upon whetherthe $100 payment would be enoughto cover withholding for any single employee for a quarter. See Defs Mot. at 9-11. Thoughthe Couti denied the government's motion for a more definite statement, it cautioned that "Mr. Bishay [would] be required to produce evidence sufficient to establish that the $100

3 Mr. Bishay was also notified ofthis requirement in a memorandum opinion issued by the United States Tax Courtin 2015. See Bishay v. Comm'r oflnternal Revenue, 109 T.C.M. (CCH) 1543, 2015 WL 3505310, at *6 n.9 (June 4, 2015). Afterunsuccessfully challenging the IRS's assessment ofthe § 6672 penalty, Mr. Bishay timely filed suit inthe Tax Court. Id. at *2-3. In that case, Mr. Bishay alleged that he was not liable for the trust fund recovery penalties because ofthe appointment ofa bankruptcy trustee in June 2002. Id. at *2. He futiher alleged that he was not liable for the § 6672 penalty because the IRS shouldhave-andfailed to-pursue the taxes from the bankruptcy estate. Id. at *3. The Tax Comi granted the IRS's motion for summary judgment, finding that the IRS didnot abuse its discretionbyissuing a notice offederal tax lien to recoverthe§ 6672 penalty from Mr. Bishay. Id. at *8. In its opinion, the Tax Court informed Mr. Bishay that a "taxpayerwhose liability is upheld inthe Letter 1153 proceeding can make a small 'token' paymenttowards the section 6672 penalty, file a refund claim with the IRS, and, if the refund claim is denied, file a refund suit in Federal District Court or the Comi ofFederal Claims." Id. at *6 n.9.

3payment he allegedly made to the IRS is equivalentto the tax due for one employee for one quarter ofliability." Order at 4, DocketNo. 22. The government filed its motion to dismiss for lack ofsubject-matterjurisdiction on June 24, 2019.
II. The Government's Motion to Dismiss
In considering a motion to dismiss for lack ofsubject-matterjurisdiction, the Court accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The Court may, however, "inqnire intojurisdictional facts" to determine whether it has jurisdiction. Rocovich v. United States, 933 F.2d 991,993 (Fed. Cir. 1991). Itis well-established that complaints filed by pro se plaintiffs are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even pro se plaintiffs must persuade the Court thatjurisdictional requirements have been met. Harris v. United States, 113 Fed. Cl. 290,292 (2013).
The Tucker Act grants the United States Court ofFederal Claimsjurisdiction over "any claim against the United States founded

... upon the Constitution, or any Act ofCongress or any regulation ofan executive depmiment, or upon any express or implied contract with the United States." 28 U.S.C. § 149l(a)(I). It serves as a waiver ofsovereign immunity and ajurisdictional grant, but it does not create a substantive cause ofaction. Jan's Helicopter Serv., Inc. v. Fed. AviationAdmin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish that "a separate source ofsubstantive law

... creates the right to money damages." Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane inrelevantpart)); Rick's Mushroom Serv., Inc., 521 F.3d at 1343 ("[P]laintiffmust lookbeyond the TuckerActto identify a substantive source oflaw that creates the right to recovery ofmoney damages against the United States.") (citation omitted).
In regards to tax disputes, the Court'sjurisdictionis generally limited to tax refund suits. See 28 U.S.C. § 1346(a)(l) (granting the Comi ofFederal Claims concurrentjurisdiction with federal district courts over "[a]ny civil action against the United States for the recovery ofany internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any marmer wrongfully collected under the internal-revenue laws"); Cheesecake Factory, Inc. v. United States, 111 Fed. Cl. 686,690 (2013) (citing 28 U.S.C. § 1346(a)(l)); Riggle v. United States, 131 F. App'x. 273,274 (Fed. Cir. 2005) (unpublished) (citing, inter alia, Shore, 9 F.3d at 1526).
In orderto meet this court'sjurisdictional requirements in a tax refund suit, a plaintiff must: 1) satisfythe full payment rule; 2) timely file a tax refund claim withthe IRS; and 3) provide the amount, date, and place ofeach payment to be refunded, along with a copy ofthe refund claim. Fry v. United States, 72 Fed. Cl. 500,510 (2006). To satisfy the full payment rule in regards to an I.R.C. § 6672 penalty, a taxpayer must pay the amount ofthe assessment attributableto one employee's withholding. Vir, 125 Fed. Cl. at 300 (quoting Boynton v. United States, 566 F.2d 50, 52 (9th Cir. 1977)). The rationale for this is that"[§] 6672 assessments represent a cumulation ofseparable assessments for each employee from whomtaxes were withheld." Boynton, 566 F.2d at 52. Thus, "courts have permitted [§] 6672 refund cases to


### 4proceed when the taxpayer prepaid the IRS an amount equal to one employee's withholding for one quarter." Vir, 125 Fed. Cl. at 301 (citing Godfrey, 748 F.2d at 1573).
The government argues that the Court lacks subject-matterjurisdiction because Mr. Bishayhas "alleged no facts that suggest [his] $100 [payment] equals the withholding for one employee for one quarter" and has "failedto produce any documents

... to support the notion that $100 was sufficient to cover the withholding for one employee." Defs Mot. at 9. It further contends that Mr. Bishay's $100 payment "was less than one third ofthe amount ofthe smallest federal withholding for the three quarters ending September 30, 2002, for one employee" and that the smallest withholding for one employee for the three quaiiers ending September 30, 2002 was $406.60 (see Comp!. Ex. 1, at 15)-----one third ofwhich would be $135.53. Def.'s Mot. at 9- 10. The government states that this suggests the $100 payment was not enough to cover the withholding for any single employee for both quarters at issue here. Id. at 10.
Mr. Bishay has not supplied facts to challenge the government's asse1iions. Instead, Mr. Bishay presents an affidavit attesting to the fact that he was Commonwealth Auto's lowestpaid employee, having received $0 dollars perhour from September 1999 through June 2002. Aff. of Bahig Bishay at

## ,r,r 1-2, DocketNo. 26-1. Therefore, in his view, the $100 token payment is equivalent to more than his withholding for at least one quarter. PL's Resp. to Def.'s Mot. to Dismiss at 9-10, DocketNo. 26.
Mr. Bishay's asse1iion, even iftrue, fails to qualify as a "tokenpayment." The exception to the full-payment rule states that "ataxpayer assessed under section 6672 need only pay the divisible amount ofthe penalty assessment attributable to a single individual's withholding before instituting a refund action." Roseman v. United States, No. 09-539T, 2013 WL 151716, at *1 (Fed. CL Jan. 3, 2013) (citing Boynton, 566 F.2d at 52) (emphasis supplied). Ifthe Court accepts Mr. Bishay's statement that he did not receive a salary during the relevanttime periods as true, that means he did not owe any tax for that period and so none would have been withheld. Thus, this zero dollars could not serve as a "divisible amount ofthe penalty assessment attributable to a single individual's withholding." Id. Because Mr. Bishay has failed to establish thathis $100 payment was attributable to one employee's withholding for one quaiier, he has failed to demonstrate that the Comipossesses subject-matterjurisdiction over his tax refund claim. Likewise, the Court does not havejurisdiction overhis remaining claims. First, Mr. Bishay asks for declaratoryjudgmentthat: 1) he does not owe the government any money; 2) the government was not entitled to record a federal tax lien against him; 3) the government failed to make a showing that Mr. Bishay exercised control over the payment oftaxes owed; and 4) the government was barred by the statute oflimitations from recording a federal tax lien against him. Comp!. at 5, 

## ,r,r 1-4. However, "this Court may not grant declaratory reliefifsuch reliefis the primary focus ofthe plaintiffs suit." Rice v. United States, 31 Fed.Cl. 156, 164 (1994), affd, 48 F.3d 1236 (Fed. Cir. 1995). Thus, the Comifinds that Mr. Bishay's claims requesting declaratory judgment are beyond the scope ofitsjurisdiction. Although the Court ofFederal Claims has concurrentjurisdiction with United States district comis overtax refund suits, thisjurisdiction does not extend to cases challenging the validity oftax liens. See 28 U.S.C. § 1346(a)(l); George v. United States,No. 99-347T, 1999


### 5WL 1211626, at *1 (Fed. Cl. May 28, 1999). Congress reserved tax lien challenges for federal district and state courts. See 28 U.S.C. §24IO(a) ("[T]he United States may be named aparty in any civil action or suit in any district court, or in any State court havingjurisdiction ofthe subjectmatter

... to quiet title to

... real or personal property on which the United States has or claims a mortgage or other lien.") (emphasis added). Additionally, the Court lacksjurisdiction on claims that request a withdrawal ofa tax lien or a reinstatement ofexempt withholding status because the claims are not based upon a money-mandating substantive source oflaw. See Gregoline v. United States, 99 Fed. Cl. 161, 168 (2011) (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)). Therefore, Mr. Bishay's challenges to the tax lien are not within the Court'sjurisdiction. Finally, the Anti-Injunction Act prevents this Couttfrom granting injunctive relief regarding IRS collection proceedings. See 26 U.S.C. § 7421; see also Schlabach v. United States, 97 Fed. Cl. 232,234 (2011) ("The Anti-Injunction Act[] 'flatly prohibits' the grant ofinjunctive reliefregarding IRS collectionproceedings") (quoting Ledford v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002)). To the extent that Mr. Bishay requests injunctive reliefagainstthe government when he asks the Court to "DISCHARGE [the Defendant's] Federal Tax Lien

... and further enjoin the Defendant from attempting to collect any money from the Plaintiffon account ofany taxes previously owed by [Commonwealth Auto]," Comp!. at 5, 

## ,r 5, the Court lacksjurisdiction over his request.
CONCLUSION
Plaintiff's motion for leave to proceed in fornm pauperis is GRANTED. Because the Coutt lacks subject-matterjurisdiction over Mr. Bishay's complaint, the government's motion to dismiss is also GRANTED. Mr. Bishay's complaint is therefore DISMISSED without prejudice. The Clerk is directed to enterjudgment accordingly. Each side shall bear its own costs.
IT IS SO ORDERED.

Judge

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