3Jn tbc Wnitcb ~tatcs Qtourt of §cbcral ~Iaims 

BAHIG F. BISHA Y, 

V. 

(Pro Se) 

No. #18-1665C 

(Filed: September 16, 2019 I Not for Publication) 

Plaintiff, 

) 

) 

) Keywords: I.RC. § 6672; Token 

) Payment; Tax Refund; Motion to Dismiss; 

) Subject-Matter Jurisdiction; Pro Se 

) 

) 

THE UNITED STATES OF AMERICA, ) Received • USCFC 

) 

Defendant. ~ SEP 1 6 2019 

_ _________ _ _____ ) 

Bahig F. Bishay, Norwood, MA, pro se. 

Courtney M Hutson, Trial Attorney, U.S. Depai1ment of Justice, Tax Division, Court of Federal 

Claims Section, Washington, D.C., with whom were Richard E. Zuckerman, Principal Deputy 

Assistant General and David I Pincus, Chief, Court of Federal Claims Section, for Defendant. 

OPINION AND ORDER 

KAPLAN, Judge. 

Presently before the Court are Plaintiff Bahig Bishay's motion for leave to proceed in 

forma pauperis, Docket No. 4, and the government's motion to dismiss pursuant to Rule 12(b)(l) 

of the Rules of the Com1 of Federal Claims ("RCFC"), Def. 's Mot. to Dismiss ("Defs. Mot.") at 

1, Docket No. 23. For the reasons that follow, Plaintiffs motion for leave to proceed in forma 

pauperis is GRANTED. The government's motion to dismiss is likewise GRANTED and 

Plaintiffs complaint is DISMISSED without prejudice for lack of subject-matter jurisdiction. 

DISCUSSION 

I. Motion for Leave to Proceed In Forma Pauperis 

Mr. Bishay requests that the Comt allow him to proceed in forma pauperis. Pursuant to 

28 U.S.C. § 1915(a)(l), "any com1 of the United States may authorize the commencement ... of 

any suit, action or proceeding ... without prepayment of fees or security therefor, by a person 

who submits an affidavit that includes a statement ... that the person is unable to pay such fees 
or give security therefor." 1 A plaintiff does not have to "be absolutely destitute to enjoy the 

benefit of the statute." Adkins v. E.I. DuPont De Nemours & Co. 335 U.S. 331,339 (1948). An 

affidavit that demonstrates that a plaintiff is unable to pay the fee or give security and still 

provide for himself and any dependents is sufficient. See id.; Waltner v. United States 93 Fed. 

Cl. 139, 143 (2010) (stating that the question is whether "paying such fees would constitute a 

serious hardship on the plaintiff'). 

Mr. Bishay states in his application that he currently has $ I ,200 in cash or bank accounts. 

Pl. 's Appl. To Proceed In Forma Pauperis at 2, Docket No. 4. He is currently unemployed and 

receives Social Security benefits in the amount of"$ I ,420/mo." Id. at 2. Under these 

circumstances, Mr. Bishay has 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 in this comi on October 17, 

20 I 8, alleging that the Internal Revenue Service ("the IRS") "arbitrarily, maliciously, and 

unjustly," recorded a tax lien against him in the amount of $41,612.40. Comp!. ,i,i 2, 5, Docket 

No. 1. He contends that the 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 

certain payroll taxes for the first two quarters of 2002. Id. ,i 2. Mr. Bishay challenges the IRS's 

determinations that Commonwealth Auto-which subsequently filed for bankruptcy-never paid 

over the taxes and/or that he bears responsibility for their payment. Id. 

The IRS assessed a penalty against Mr. Bishay on February 5, 2007 in accordance with 

I.R.C. § 6672. Def.'s Mot. Ex. 1, at I (IRS transcript for Bahig Bishay indicating that 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. Bishay that penalty 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 of federal tax lien). In its February 5, 2007 notices, the IRS advised Mr. Bishay of his 

right to file a suit for a refund. Id. at 31, 34. The notices instructed him that, to do so, he must 

1 For purposes of28 U.S.C. § 1915, the Comi of Federal Claims is a court of the United States. 

28 U.S.C. § 2503(d). 

2 I.R.C. § 6672(a) provides that a person is subject to a 100% tax penalty ifhe "willfully fails to 

collect[], or truthfully account for and pay over[], or willfully 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) (discussing the elements ofa 

penalty under I.R.C. § 6672). In other words, the statute imposes personal liability on officers or 

employees of a 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 "trust fund recovery penalty." Id. 

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"pay the withheld tax for one employee for one quarter of liability" 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 withheld tax for one employee for 

one qumier of liability stems from the requirement that, to invoke this Couti's jurisdiction in a 

tax refund suit, a plaintiff must comply with the "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); Jackson v. United States, 143 Ft,d. Cl. 242,246 (2019). Where, as here, the 

tax in question involves a § 6672 penalty, the plaintiff can satisfy the full payment rule by paying 

the "IRS an amount equal to one employee's withholding for one qumier." Vir v. 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 in Weber 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 noting that "appended herewith [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 "a taxpayer may 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 payment toward his 

trust fund penalty liability on August 7, 2015. Def.'s Mot. for a More Definite Statement, Ex. 1, 

at 2, Docket No. 20. 

The government filed a motion for a more definite statement on May 24, 2019 asking Mr. 

Bishay to put forth facts to show that the $100 payment was equivalent to the tax due for one 

employee for one qumier of liability. The government observed that certain payroll records 

provided as exhibits to the complaint cast doubt upon whether the $100 payment would be 

enough to cover withholding for any single employee for a quarter. See Defs Mot. at 9-11. 

Though the 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 of this requirement in a memorandum opinion issued by the 

United States Tax Court in 2015. See Bishay v. Comm'r oflnternal Revenue, 109 T.C.M. (CCH) 

1543, 2015 WL 3505310, at *6 n.9 (June 4, 2015). After unsuccessfully challenging the IRS's 

assessment of the § 6672 penalty, Mr. Bishay timely filed suit in the Tax Court. Id. at *2-3. In 

that case, Mr. Bishay alleged that he was not liable for the trust fund recovery penalties because 

of the appointment of a bankruptcy trustee in June 2002. Id. at *2. He futiher alleged that he was 

not liable for the § 6672 penalty because the IRS should have-and failed 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 did not abuse its discretion by issuing a notice of federal tax lien 

to recover the§ 6672 penalty from Mr. Bishay. Id. at *8. In its opinion, the Tax Court informed 

Mr. Bishay that a "taxpayer whose liability is upheld in the Letter 1153 proceeding can make a 

small 'token' payment towards 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 of Federal 

Claims." Id. at *6 n.9. 

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payment he allegedly made to the IRS is equivalent to the tax due for one employee for one 

quarter ofliability." Order at 4, Docket No. 22. The government filed its motion to dismiss for 

lack of subject-matter jurisdiction on June 24, 2019. 

II. The Government's Motion to Dismiss 

In considering a motion to dismiss for lack of subject-matter jurisdiction, the Court 

accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor 

of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). 

The Court may, however, "inqnire into jurisdictional facts" to determine whether it has 

jurisdiction. Rocovich v. United States, 933 F.2d 991,993 (Fed. Cir. 1991). It is 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 that jurisdictional requirements have been met. Harris 

v. United States, 113 Fed. Cl. 290,292 (2013). 

The Tucker Act grants the United States Court of Federal Claims jurisdiction over "any 

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

regulation of an 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 of sovereign immunity and a jurisdictional 

grant, but it does not create a substantive cause of action. Jan's Helicopter Serv., Inc. v. Fed. 

Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish 

that "a separate source of substantive law ... creates the right to money damages." Id. ( quoting 

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part)); Rick's 

Mushroom Serv., Inc., 521 F.3d at 1343 ("[P]laintiffmust look beyond the Tucker Act to 

identify a substantive source of law that creates the right to recovery of money damages against 

the United States.") (citation omitted). 

In regards to tax disputes, the Court's jurisdiction is generally limited to tax refund suits. 

See 28 U.S.C. § 1346(a)(l) (granting the Comi of Federal Claims concurrent jurisdiction with 

federal district courts over "[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, 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 order to meet this court's jurisdictional requirements in a tax refund suit, a plaintiff 

must: 1) satisfy the full payment rule; 2) timely file a tax refund claim with the IRS; and 3) 

provide the amount, date, and place of each payment to be refunded, along with a copy of the 

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 of the assessment 

attributable to 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 of separable assessments for each employee from whom taxes were 

withheld." Boynton, 566 F.2d at 52. Thus, "courts have permitted [§] 6672 refund cases to 

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proceed 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-matter jurisdiction because Mr. 

Bishay has "alleged no facts that suggest [his] $ 100 [payment] equals the withholding for one 

employee for one quarter" and has "failed to 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 of the amount of the 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 of which 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 lowest paid 

employee, having received $0 dollars per hour from September 1999 through June 2002. Aff. of 

Bahig Bishay at ,r,r 1-2, Docket No. 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, Docket No. 26. 

Mr. Bishay's asse1iion, even if true, fails to qualify as a "token payment." The exception 

to the full-payment rule states that "a taxpayer assessed under section 6672 need only pay the 

divisible amount of the 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). If the Court 

accepts Mr. Bishay's statement that he did not receive a salary during the relevant time 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 of the penalty assessment 

attributable to a single individual's withholding." Id. Because Mr. Bishay has failed to establish 

that his $100 payment was attributable to one employee's withholding for one quaiier, he has 

failed to demonstrate that the Comi possesses subject-matter jurisdiction over his tax refund 

claim. 

Likewise, the Court does not have jurisdiction over his remaining claims. First, Mr. 

Bishay asks for declaratory judgment that: 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 of taxes owed; and 4) the 

government was barred by the statute of limitations from recording a federal tax lien against him. 

Comp!. at 5, ,r,r 1-4. However, "this Court may not grant declaratory relief if such relief is the 

primary focus of the plaintiffs suit." Rice v. United States, 31 Fed.Cl. 156, 164 (1994), affd, 48 

F.3d 1236 (Fed. Cir. 1995). Thus, the Comi finds that Mr. Bishay's claims requesting declaratory 

judgment are beyond the scope of its jurisdiction. 

Although the Court of Federal Claims has concurrent jurisdiction with United States 

district comis over tax refund suits, this jurisdiction does not extend to cases challenging the 

validity of tax liens. See 28 U.S.C. § 1346(a)(l); George v. United States, No. 99-347T, 1999 

5 
WL 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 a party in 

any civil action or suit in any district court, or in any State court having jurisdiction of the 

subject matter ... 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 lacks jurisdiction on 

claims that request a withdrawal of a tax lien or a reinstatement of exempt 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's jurisdiction. 

Finally, the Anti-Injunction Act prevents this Coutt from 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 of injunctive 

relief regarding IRS collection proceedings") (quoting Ledford v. United States, 297 F.3d 1378, 

1381 (Fed. Cir. 2002)). To the extent that Mr. Bishay requests injunctive relief against the 

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 Plaintiff on 

account of any taxes previously owed by [Commonwealth Auto]," Comp!. at 5, ,r 5, the Court 

lacks jurisdiction over his request. 

CONCLUSION 

Plaintiff's motion for leave to proceed in fornm pauperis is GRANTED. Because the 

Coutt lacks subject-matter jurisdiction 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 enter judgment accordingly. Each side shall bear its own 

costs. 

IT IS SO ORDERED. 

Judge 

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