# In the United States Court of Federal Claims

No. 13

- 4 T (Filed: August 26

, 2013 )

************************************* * JIBRIL LUGMAN IBRAHIM, *

* Plaintiff, *

* Illegal Exaction; Tax Refund Claim; 31

v. * U.S.C. § 3720A(c); Tax Refund Offset ;

* Student Loan Debt; pro se

. THE UNITED STATES, *

*

Defendant. *

************************************* *

Jibril Lugman Ibrahim , Washington, DC

, pro se

.

Paul G. Galindo

, United States Depar tment of Justice, Washington, DC , for defendant.

OPINION AND ORDER

SWEENEY , Judge

Plaintiff Jibril Lugman Ibrahim initiated this action seeking a refund of taxes from the

Internal Revenue Service (“IRS”) for the 2011 tax period . Plaintiff seeks to recover a $5,022

refund he claimed on his initial Form 1040

, U.S. Individual Income Tax Return, or, alternatively

,

a $4,861 refund he claimed on his amended Form 1040

. The case is now before the c ourt on
defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”)

. Defendant argues plaintiff

has not sa tisfied the requirement of full payment of taxes to invoke this c ourt’s jurisdiction over

a tax refund claim. For th e reasons set forth below, the c ourt GRANTS IN PART and DENIES

IN PART defendant’s motion to dismiss.

I. BACKGROUND

In March 2012, plaintiff, through a tax preparer, filed a Form 1040 for the 2011 tax year

. Compl. ¶ 3

. Defendant attached as an exh ibit to its motion to dismiss a copy of the Certificate of

Ass essments, Payments, and Other Sp ecified Matters (“Form 4340”) that details the IRS’s record

of plaintiff’s 2011 tax return. M ot., Ex. A. The dates listed on the F orm 4340, however, appear

not to match the likely order of events. See id. The Form 4340 shows that plaintiff claimed $0 of tax liability for the 2011 tax year. See id. It also shows that plaintiff was entitled to a refund of $5,022

, including $928 in withheld taxes, $1,000 for a n unspecified refundable credit , and $3,094 for an earned income credit

. See id.- 2

- The IRS initially allowed plaintiff a refund of $1,928 resulting from his tax withholdings and unspecified refundable credit

. See id. P laintiff alleges that in July 2012, the IRS notified

him that he was not eligible to receive the earned income credit and requested that plaintiff file

an amended Form 1040. Compl. ¶ 5. Plaintiff claims that he then filed the amended form through a tax preparer and requested a tax refund of $4,861. 1 Id. Then

, on April 2, 2012

, the IRS apparently approved a $1,928 refund to plaintiff

. See

Instead of paying the $1,928 refund to plaintiff, t he IRS transferred the amount to the

United States Department of Education (“ ED ”). Mot., Ex. A.

See id.

The Treasury offset plaintiff’s tax refund to repay part of a $2,500 loan that Grant K. Anderson received in 1984 under the Federal Family Education Loan Program. The United States Department of Treasury (“Treasury”) Offset Program allows the Treasury to transfer a taxpayer’s refund to

another f ederal agency to pay a taxpayer’s past due debt

. 26 U.S.C. § 6402(d) (2012) ( describing

how the Treasur y collects debts owed to other f ederal agencies); 31 U.S.C. § 3720A (2006) ( explaining when the Treasury will reduce a taxpayer’s refund by the am ount of a debt owed to

another f ederal agency).

See Compl. ¶¶ 6, 13. Plaintiff ’s social security number appears on the promissory note, but the borrower

listed on the note is Grant K. Anderson. Se e id. ¶ 8. Plaintiff claims that he is not Grant K. Anderson, and thus , the ED unlawfully offset plaintiff’s tax refund to pay the student loan debt.

Id. ¶¶ 13

- 15

. To explain the discrepancy between the use of plaintiff’s social security number

and the use of another name, plaintiff suggests that someone stole his identity to obtain the loan.

Id. ¶ 14. Plaintiff claims that he proved that he is not Grant K. Anderson in 2010 when he sent the IRS his original birth certificate, driver’s license, and name change form from 1989. 2 Id.

Following a later review of plaintiff’s 2011 tax re turn

, which appears to have occurred on April 15, 2012, the IRS reversed its a llowance of the unspecified refundable credit to plaintiff

and assessed an additional tax of $53 3 with interest of $38.44. See M ot., Ex. A. The IRS took this action after it had already transferred these amounts as an offset to the ED

. See id. The

reversal and additional tax , combined with the prior offset, resulted in plaintiff o wing $1,571.44

. Plaintiff’s 2011 tax withholdings , however, were nearly $400 more than the IRS ultimately

determined he owed

. See id.

II. DISCUSSION Because plaintiff has not paid the outstanding amount, defendant moved to dismiss plaintiff’s complaint , arguing that this c ourt only has jurisdiction over tax refund claims when the plaintiff has fully paid the disputed taxes.

The c ourt liberally construes the pleadings of a pro se plaintiff, Estelle v. Gamble , 429 U.S. 97, 106 (1976), and reviews a pro se

1 On the Form 4340, there is no record of plaintiff filing an amended Form 1040 seeking a tax refund of $4,861. See Mot., Ex. A. It is unclear how plaintiff arrived at a claimed refund of $4,861 if his claim for the $3,094 earned income credit was reduced from the refund of $5,022 that plaintiff sought on his original Form 1040

. complai nt, “ however inartfully pleaded, ” with “ less

2 Neither party states whether plaint iff changed his name from Grant K. Anderson to Jibril Lugman Ibrahim or any other details about Grant K. Anderson

.- 3

- stringent standards than formal pleadings drafted by lawyers .” Hughes v. Rowe , 449 U.S. 5, 9 (1980) ( citation and internal quotation marks omitted)

. Nonetheless, the plaintiff bears the burden of establishing subje ct matter jurisdiction. Alder Terrace, Inc. v. United States

Plaintiff invokes this c ourt’s jur isdiction under the Tucker Act , which confers jurisd iction “upon any claim against the United States founded either upo n the Constitution, or any Act of

C ongress
, or any regulation of an executive department.” 28 U.S.C. § 1491 (2012)

. While the Tucker Act waives sovereign immunity, it does not alone provide the c ourt with jurisdiction over

a claim. , 161 F. 3d 1372, 1377 (Fed. Cir. 1998).

Jan’s Helicopter Serv ., Inc. v. FA A , 525 F.3d 1299, 1305

- 06 (Fed. Cir. 2008). Rather, a plaintiff must also identify “ ‘ a separate source of substantive law that creates the right to money damages. ’ ” Id. at 1306 (quoting Fisher v. United States , 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) )

. Plaintiff’s tax refund claim falls under 28 U.S.C. § 1346(a) (2012) , which mandates the payment of money in federal tax refund actions. Daniels v. United States

Defendant argues , however, that the court d oes not have jurisdiction over this tax refund

claim. A plaintiff cannot invoke this c ourt’s jurisdiction over a tax refund claim until the plaintiff has fully paid the taxes for the disputed period

. , 77 Fed. Cl. 251

, 2 54 (2007). Under 28 U. S.C. § 1346(a)(1) , the court has jurisdiction over “[a]ny civil action against the United States for the recovery of any internal

- revenue tax alleged to have been erroneously or ille gally assessed or collected .”

See L edford v. United States

Nevertheless, b y liberally construing plaintiff ’s complaint, the c ou rt does possess jurisdiction over plai ntiff’s claim against the ED for illegal exaction of his tax refund by the

means of an offset

. While “[t] he prototypica l illegal exaction claim is ‘a tax refund suit alleging that taxes have been improperly collected or withheld by the g overnment, ’” , 297 F.3d,

1378

, 1382 (Fed. Cir. 2002)

. Because plaintiff owes the IRS an unpaid balance , this c ourt lacks jurisdiction over plaintiff’s claim for a tax refund.

Kipp le v. United

States , 102 Fed. Cl. 773 , 777 (2012) (quoting Norman v. United States

Because the full payment rule doe s not apply to plaintiff’s illegal exaction claim, the

c ourt has jurisdiction over plaintiff’s suit to recover the amount of the offset as long as the complaint states an illegal exaction claim for the tax refund offset. Generally, an illegal exaction

claim arises when the g overnment impro perly receives or exacts money from an individual. , 429 F.3d 1081, 1095 (Fed. Cir. 2005)), a plaintiff may allege an illegal exaction claim that is not a tax refund. Section 6402(g) of Title 26 of the United States Code sta tes that “[n]o action brought against the United States to recover the amount of any such reduction [of a tax refund by an offset] shall be

considered to be a suit for a refund of tax

. ” P laintif f’s illegal exaction claim based on the offset

is therefore not a suit for a refund his taxes . Thus

, plaintiff d id not need to have previously fully paid his taxes for the disputed period in order to challenge the defendant’s offset

.

See

N orman , 429 F.3d at 1095. “[A] plaintiff claiming jurisdiction based on an illegal exaction must demonstrate that 1) the exaction was directly caused by a misapplication of a statute, and 2) the

reme dy implicit in the statute is the return of the funds.” Pennoni v. United States , 79 Fed. Cl. 552, 561 (2007). This c our t has construed pro se complaints that seek to recover tax refund s unlawfully offset as claims for illegal exactions of tax refund offsets rather than tax refund

claims

. See Wagstaff v. United States , 105 Fed. Cl. 99 (2012) (construing a pro se plaintiff’s

claim to recover the amount of her tax refund us ed for a tax refund offset as an illegal exaction- 4

- claim and finding that the Unit ed States Court of Federal Claims has jurisdiction to hear such a claim); Kipple , 102 Fed. Cl. 7 73 (holding that the c ourt would construe a pro se

Plaintiff’s complaint, read similarly

, meets the requirements for a claim of illegal

exaction based on a tax refund offset against the ED

. plaintiff’s claim to recover the amount of a tax refund unlawfully offset as a n illegal exaction claim

, over which

the United States Court of Feder al Claims has jurisdiction).

3 First, plaint iff alleges the ED misapplied

the statute authorizing tax refund offsets

. That statute, 31 U.S.C. § 3720A(c), provides that when

a f ederal agency learns that an individual “owes to such agency a past due legally enforceable debt, the Secretary of Treasury shall determine whether any amoun ts, as refunds of Federal taxes paid, are payable to such person

, ” and if the Secretary finds some refunds are available, “he shall reduce such refunds by an amount equal to the amount of such debt.” P laintiff claims the

g overnment wrongly determined that plaintiff owes a “past due legally enforceable debt” because p laintiff suggests another individual used plaintiff’s information to obtain the f ederal

student loan under the name of Grant K. Anderson

. Thus, plaintiff claims that the ED misapplied § 3720 A when it offset plaintiff’s tax refund to satisfy another individual’s debt

. Second

, t his c ourt has p reviously determined that § 3720 A implicitly requires a monetary remedy because “absent a monetary remedy, a litigant has no recourse to recover . . . income tax refunds unlawfully offset.” Wagstaff , 105 Fed. Cl. at 122 ; Kipple

Because the c ourt construes plaintiff’s complaint to assert a claim for illegal exaction by means of an improper offset , this c ourt has jurisdiction over plaintiff’s claim to recover $1,928

, the amount of plaintiff’s tax refund that was offset to pay the student loan debt

. , 102 Fed. Cl. at 777 (“The remedy [for an ill egal exaction under 31 U.S.C. § 3720 A] would be a return of the money.”).

III. CONCLUSION

This c ourt lacks jurisdiction over plaintiff’s tax refund claim because plaintiff has not fully paid the disputed taxes . Liberally construing plaintiff’s pro se

3 This claim can only be brought against the ED because a taxpayer cannot bring a claim against the Treasury based on unlawful offsets. 26 U .S.C. § 6402(g) (“N o court of the United States shall have jurisdiction to hear any ac tion, whether legal or equitable, brought to restrain or

review [ a tax refund offset ]

. ”). Although § 6402(g) “prohibits federal courts from adjudicating a taxpayer’s cha llenge to the Department of Treasury’s actions when offsetting a tax refund . . . [,] § 6402(g) . . . preserves the right of taxpayers to bring any ‘legal, equitable or administrative action against the Federal agency . . . to which the amount of such reduc tion was paid’ by Treasury.” Wagstaff , 105 Fed. Cl. at 112 n.11 (quoting 26 U.S.C. § 6402(g)). Thus, while

p lain tiff cannot challenge the tax refund offset by bringing a claim against the Treasury, plaintiff can challenge the offset by bringing a claim against the ED because the agency received the offset of plaintiff’s tax refund. p leadings, the Tucker Act

, however, confer s jurisdiction over a claim against the E D for illegal exaction based on a tax

refund offset . Accordingly, for the foregoing reasons, the c ourt GRANTS IN PART and

DENIES IN PART defendant’s motion to dismiss pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction.- 5

- By no later than Monday, September 9 , 2013 , defendant shall file an answer to plaintiff’s complaint.

IT IS SO ORDERED.

MARG ARET M. SWEENEY Judge