ORIGINAT

No. 12-390 T

Filed: August 20,2014

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MARK A. HILL,

Plaintiff, pro se,

THE TINITED STATES,

Defendant.

TJntlSt @nite! btutts @surt of /e[erg[ @t{*ruED

AUG 90 2014

'EiieSRiSh?fi'

26 U.S.C. $ 6402 (reducing overpayments

to cover outstanding liabilities);

28 U.S.C. $ 1346;

31 U.S.C. $ 3343 (check forgery

insurance fund);

31 U.S.C. $ 3716 (Treasury Offset

Program);

Pro Se1'

RCFC 56 (summary judgment).

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Mark A. HiIl, Chillicothe, Ohio, Plaintiff, pro se.

Michael J. Ronickher, United States Department of Justice, Tax Division, Washington, D.C.,

Counsel for the Govemment.

MEMORANDUM OPINION AND FINAL JUDGMENT

BRADEN, Jzdge.

I. RELEVANTFACTUALBACKGROUND.'

Mark A. Hill ("Plaintiff'or "Mr. Hill") is seeking payment of his misappropiated 2007

tax refund check for $1,182.46, as well as interest, punitive damages, and a ruling exempting this

payment from the Treasury Offset Program, established by 31 U.S.C. $ 3716. Compl. 4-5; see

a/so Pl. Mot. 8-9.

On August 5, 2008, the Intemal Revenue Service ("IRS") informed Mr. Hill that his tax

retum for 2007 "was received but could not be found." Compl. fl 2, Exs. I , I 3.

I The relevant facts discussed herein were derived from: Plaintiffs June 18, 2012

Complaint ("Compl.") and eighteen attached unnumbered exhibits ("Compl. Exs. 1-18");

Plaintiff s December 6, 2013 Motion For Sumrnary Judgment ("P1. Mot."), and the

Govemment's May 1,2014 Response ("Gov't Resp.").
On January 19,2009, the IRS sent a letter to Mr. Hill instructing him to send "a newly

signed copy of the 2007 tax return." Compl. Ex.2.

On February 27,2009, Mr. Hill was sentenced to an eight-year prison term. Compl. Ex.

3 (containing the Judgment Entry re: December 2008 criminal prosecution). After sentencing, he

was transported to the Corrections Reception Center ("CRC") in Orient, Ohio, where he

executed a copy of his 2007 tax retum sometime in March 2009. On April 2, 2009, he was

transferred to the Chillicothe Correctional Institution in Chillicothe, Ohio. Compl. Ex. 13.

On April 6, 2009, the IRS Processing Center received Mr. Hill's 2007 tax retum and

processed it on June 5,2009. Compl. Ex. 14. The IRS determined that Mr. Hill was entitled to a

tax refund of $1,182.46, and, on June 5,2009, mailed a check for that amount to the address

provided on Plaintiff s 2007 Form 1040 tax retrun. Compl. Ex. 14; Gov't Resp. Ex. I at A-2.

On June 29, 2009, the refund check was returned by the United States postal Office,

marked undeliverable. compl. Ex. 14. The IRS then issued a refund notice and requested Mr.

Hill's cunent mailing address. Compl. Ex. 14. This notice was received by prison authorities

who "erroneously delivered" it to another inmate also named Mark Hill C'Hill II"),2 although it

contained Mr. Hill's personal information, including his taxpayer identification number and

social security number, which Hill II used to impersonate Mr. Hill and obtain the refund check.

Gov't Resp. 2; Gov't Resp. Ex.2at A-5; Compl. Ex. 14. OnJuly9,2009, the IRS was contacted

via its toll-free phone number by an individual who claimed the refund and provided an address

in Waverly, Ohio. Compl. Ex. 14; Gov't Resp. Ex. 2 at A-5. On July 24,2009, the IRS issued

the refund to the waverly, ohio address. compl. Ex. 14. Hill II subsequently cashed the check

at First check cash Advance, endorsing it as "Mark Hill" without the middle initial, even though

it was addressed to "Mark A. Hill." Gov't Resp. Ex. 2 at A-5.

On October 21, 2009, the IRS informed Mr. Hill that his 2007 tax refund check $1,182.46

was issued on J.uly 24, 2009. Mr. Hill promptly submitted an IRS Form 3911, Taxpayer

Statement Regarding Refund. compl. Ex. 5. on January 20,2010, the IRS notified Mr. Hill that

it would take four to six weeks to trace the refund check. compl. Ex. 6. on August 2,2010, the

IRS informed Mr. Hill that an additional forty-five days was needed to complete the

investigation. compl. Ex. 8. Mr. Hill subsequently requested assistance from the Taxpayer

Advocate Service, who, on May 10, 2011, provided him with a copy of the cancelled 2007 tax

refund check and the location where it was cashed. Compl. Exs. l l, 12.

On May 19, 2011, Mr. Hill sent a letter to Secretary of the Treasury, requesting

assistance in obtaining his refund. compl. Ex. 13. on August l, 2011, Mr. Hill received a

response from the IRS wage and Investment Division, explaining that his refund was

misappropriated and providing information to resolve the mafter. compl. Ex. 14. Thereafter,

Mr. Hill submitted an Affidavit of Accusation on September 21, 2011, to six separare

organizations to obtain t}le 2007 tax refund, which led to an investigation of the Chillicothe

'The identity of the individual who cashed Mark Hill's 2007 tax refund check is redacted

in the oSHP Investigation Report, although the Govemment's Response, which was not filed

under seal, states that his name is Mark Hill. See Gov,t Resp. 2 & Ex. 2.
Correctional Institution, the Institution Liaison, and Investigator from the Ohio State Highway

Patrol ("OSHP"). Compl. Ex. 15; Gov't Resp. Ex. 2.

On October 12, 2011, Mr. Hill completed and submitted IRS forms for "Claims Against

the United States For the Proceeds of a Govemment Check" (FMS Form 3858 and FMS form

I 133), as directed by the Financial Management Service of the Deparhnent of the Treasury and

the OSHP Investigator. Compl. flfl 18-19 (citing OSHP Case #11-036035-0900); id Ex. 16. On

November 30, 2011, Mr. Hill received correspondence from a Legal Administrative Specialist of

the Check Resolution Division asking for additional information, which Plaintiff submitted on

December 13,2011. Compl. Exs. 17, 18.

I PROCEDURALHISTORY.

On June 18,2012, Mark Hill filed a Complaint in the United States Court of Federal

Claims, pursuant to RCFC 9(m) and 28 U.S.C. g 1346, to obtain his 2007 federal income tax

refund, in the amount of $1,182.46, plus appropriate interest for each year beyond 2008, and

$1,182.46 in punitive damages. Compl. at 4-5. The Complaint also demanded the costs of this

action be paid and that the monetary judgment awarded not be subject to any offset, including

court costs and student loan debt. Compl. at 4-5.

On December 18,2012, the Govemment filed an Answer, stating, inter alia, Ihat

"[P]laintiff is not entitled to recover for a second time any amounts that have been already paid

to him by any agency of the United States," and that "this [c]ourt has no jurisdiction to hear

Plaintiffs claim for punitive damages . . . because the United States has not waived its sovereign

immunity for such claims." Answer flr]l 25-26. The Govemment also stated that, pursuant to 26

U.S.C. $ 6402, any recovery by Plaintiff may be credited against certain outstanding liabilities,

including liability for any intemal revenue tax. Answer tl 27.

On June 20,2013, Plaintiff filed a Motion For Production Of Documents and requested a

court order requiring Trooper S. Wells and Investigator P. Arledge "to produce, and provide

Plaintiff, a report of facts and conclusions determined from the investigation of the

misappropriated 2007 Federal Income Tax Refund Check in the amount of $1,182.46." On June

24,2013, the cout granted Plaintiffs June 20, 2013 Motion For Production Of Documents,

construing the motion as "requesting a subpoena for production of documents in existence."

Altematively, in accordance with RCFC 31(a), the court stated that Plaintiff may depose the two

individuals named in his Motion For Production of Documents by written questions. In

accordance with the court's June 24,2013 order, Trooper Sheni wells produced the September

30,2011 Ohio State Highway Patrol Report of Investigation, Constitutional Rights Waiver, and

Statement Form ("OSHP Report"). See Gov't Resp. Ex. 2.

On December 6, 2013, Plaintiff filed a Motion For Summary Judgment (,.p1. Mot.").

On May 1, 2014, the Govemment filed an Opposition To plaintiffls Motion For

Summary Judgment ("Gov't Resp."). Plaintiff did not file a Reply.
III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28

U.S.C. $ 1491, "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. $ 1a91(aXl). The Tucker Act, however, is "a

jurisdictional statute; it does not create any substantive right enforceable against the United

States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States

Court of Federal Claims] whenever the substantive right exists." United States v. Testan,424

U.S. 392, 398 (1976). Congress has authorized the United States Court of Federal Claims to

adjudicate "[a]ny civil action against the United States for the recovery of any intemal-revenue

tax alleged to have been enoneously 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

manner wrongfully collected under the intemal-revenue laws[.]" 28 U.S.C. $ 13a6(a)(1).

In tax refund suits, the 'Jurisdiction of the [United States] Court of Federal Claims is

limited by the Intemal Revenue Code." llaltner v. United States,679 F.3d 1329,1332-33 (Fed,.

Cir.2012); see also United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4, S-9 (2003)

(explaining that a taxpayer suing in the United States Court of Federal Claims to obtain a refund

must "comply with the tax refund scheme established in the Code"). Jurisdiction is established

if: (1) the taxpayer has paid his full federal tax liability for the year for which he claims a refund;

(2) before filing suit, the taxpayer timely files an administrative claim for the refund with the IRS

for the amount at issue; and (3) subsequently, the taxpayer timely files suit ,,provid[ing] the

amount, date, and place of each payment to be refunded, as well as a copy of the refund claim',

pursuant to RCFC 9(m). 2 Cyc. oF FED. Pnoc. g 2:413 (3d ed.) (updated Aug. 2014); see also26

U.S.C. $ 7 422(a) ("No suit or proceeding shall be maintained in any court for the recovery of any

intemal revenue tax alleged to have been erroneously or illegally assessed or collected, or ofany

penalty claimed to have been collected without authority, or of any sum alleged to have been

excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly

filed with the secretary[.]"); 26 u.S.c. g 6511(a) (setring the period of limitation on filing an

administrative tax refund claim with the IRS); 26 u.s.c. $ 6532(a) ('No suit or proceeding under

section 7 422(a) for the recovery of any intemal revenue tax, penalty, or other sum, shall be

begun before the expiration of 6 months from the date of filing the claim required under such

section unless the Secretary renders a decision thereon within that time, nor after the expiration

of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the

taxpayer ofa notice ofthe disallowance of the part of the claim to which the suit or proceeding

relates."); shore v. united states,9 F.3d, 1524, 1526 (Fed. cir. 1993) (holding that a tax refund

claim must be dismissed if the "principal tax deficiency has not been paid in full,').

In addition, the united states court of Federal claims has jurisdiction under 31

U.S.C. $ 3343 to determine whether a taxpayer is entitled to a replacement check from the Check

Forgery Insurance Fund, since that statute is money-mandatin g. See Curtin v. IJnited Stotes,gl
Fed. Cl. 683, 687-88 (2010) (determining that Section 3343 is "a money-mandating statute").

To establish entitlement to reliefunder Section 3343, the taxpayer must establish that:

(1) the check was lost or stolen without the fault ofthe payee or a holder that is a

special endorsee and whose endorsement is necessary for further negotiation;

(2) the check was negotiated later and paid by the Secretary or a depositary on a

forged endorsement of the payee's or special endorsee's name; and

(3) the payee or special endorsee has not participated in any part of the proceeds

of the negotiation or payment.

31 U.S.C. $ 33430); see also Curtin, 91 Fed. Cl. at 688 (discussing tle requirements of Section

3343).

In this case, the court has jurisdiction to adjudicate the claims alleged in the June 18,

2012 Complaint under both 28 U.S.C. $ 1346 and 31 U.S.C. $ 3343.

r. 28 U.S.C. g 1346.

As to Section 1346, the evidence demonstrates that Plaintiff filed his 2007 Individual

Federal Income Tax Retum on April 15, 2008 and paid the federal tax liability due for 2007.

Compl. Exs. 2, 14; Gov't Resp. Ex. 1 at A-2. The evidence also demonstrates that the IRS

determined that Plaintiff overpaid his 2007 taxes by $1,176 and was entitled to a refund in the

amountof$1,182.46 ($1,176p|us $6.46 in interest). Gov't Resp. Ex. l atA-2.

Plaintiff also has established that he timely filed an administrative claim for his 2007

refund check with the IRS. The Intemal Revenue code requires a taxpayer to file a claim for

refund with the IRS filed within "3 years from the time the retum was filed or 2 years from the

time the tax was paid, whichever of such periods expires the later[.1,, 26 U.S.C. $ 651 lia;; see

also clintwood Elbwood Mining,553 u.s. at 5 ("[U]nless a claim for refund of a tax has been

filed within the time limits imposed by $ 6511(a), a suit for refund. . . may not be maintained in

any court." (quoting United States v. Dalm,494 U.S. 596,602 (1990)). Therefore, in order to

comply with the limitations set forth in 26 U.S.c. g 6511(a), Plaintiff must have filed a refund

claim with the IRS no later than April, 15, 2011. see 26 u.s.c. g 6511(a). plainriff, however,

did not submit the IRS formal claims documents-Form FMS-3858 (claims Document) and

Form FMS-I133 (claim Against the united states for the proceeds of a Govemment check)-

until October 12, 2011. Compl. Ex. 16; Program Operations Manual System (POMS) GN

0240 1. 908, Social Security Administrarion ( April 21, 20 1 4).

"Under the informal claims doctrine, a timely claim with purely formal defects is

permissible if it fairly apprises the IRS of the basis for the claim within the limitations oeriod.,'

computervision corp. v. united states,445 F.3d 1355, 1364 (Fed. cir. 2006); see also lhestern

Co. of N. Am. v. United States, 323 F.3d, 1024, 1035 (Fed. Cir. 2003) (recognizing rhat the

informal claim doctrine applies where the taxpayer repeatedly requested information from the

'I

- Avq t I a b I e dr http://policy.ssa.gov/poms.nsf/lrlx/020240I908.
IRS). The record in this case establishes that Plaintiff made several informal claims to the IRS

within the tlree-year period. The United States Supreme Court has held that "a [timely] notice

fairly advising the Commissioner of the nature of the taxpayer's claim. . . will nevertheless be

treated as a[n effective] claim, where formal defects . . . have been remedied by amendment filed

after the lapse of the statutory period." United States v. Kales,314 U.S. 186, 194 (1941). In

ll'estern , 

the IRS erroneously assessed the taxpayer a "failure-to-fi1e" penalty. Western,323

F.3d at 1035. The taxpayer, in response, "repeatedly requested information about the basis for

the penalty but did not file a formal claim." Id. These requests were documented in writing. Id

Under these circumstances, the taxpayer's refund claim was not baned, because, the plaintiff

"made repeated requests for information that would have allowed filing of an informed

claim....[andthatservedto]putthelRSonnoticeof[plaintiffs]challenges;'ld.at1034-35.

In this case, Plaintiff frrst inquired into the status of his refund on August 5, 2008, after

which the IRS confirmed that his 2007 tax retum was received, but could not be found. Compl.

Ex. 1. On January 19, 2009, the IRS sent a letter to Plaintiff instructing him to send .,a newly

signed copy of the original 2007 tax retum." Plaintiff did so in March of 2009. Compl. Ex. 2.

The IRS Processing center received the new 2007 tax retum on April 6, 2009 and processed it

on June 5, 2009. Compl. Ex. 14. The IRS determined that Plaintiff was entitled to a tax refund

of $1,182.46, and, on June 5,2009, mailed a check for that amount to the address provided on

Plaintiff s 2007 Form 1040 tax retum. Gov't Resp. Ex. I at A-2; compl. Ex. 14. plaintiff

continued to conespond with the IRS and various other parties, within the period of limitations

established by 26 U.S.c. g 6511, to obtain his refund check, including submitting Form 3911

(Taxpayer Statement Requiring Refund), providing the IRS with information to facilitate its

effort to locate Plaintiff s refund check. compt. tf 7, Ex. 5. Therefore, plaintiff repeatedly

requested information via witten correspondence regarding the status of his refixrd throughout

the limitations period and "put the IRS on notice" of the basis for his claim. see western, 323

F.3d at 1035. Therefore, under the informal claims doctrine, PlaintifPs suit is not barred for

failing to timely file an administrative refund claim with the IRS.

In addition, Plaintiff timely filed the June 18, 2012 Complaint in the United States Court

of Federal claims, complying with the requirements of RCFC 9(m). To timely file suit for a tax

refund, Plaintiff must have filed not before "the expiration of 6 months fiom the date of filing the

claim . . . unless the Secretary renders a decision thereon within that time, nor after the expiration

of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the

taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceedine

relates." 26 u.s.c. g 6532(a). In rhis case, plaintiff began submitting "informal ilui.r" oi

August 5, 2008 and the IRS was "put on notice" ofhis refund claim on June 5, 2009 at the latest.

Compl. Exs. 1, 14. Both of these dates iue more than six months prior to the filing of Plaintiff s

complaint in the court of Federal claims. Jee 26 u.s.c. $ 6532(a). Moreover, plaintiff

commenced this suit prior to "the expiration of 2 years from the date of mailing by certified mail

or registered mail by the Secretary to the taxpayer of a notice ofthe disallowance ofthe part of

the claim to which the suit or proceeding relates," because the Secretary never mailed to plaintiff

a "notice of disallowance of the part of the claim to which the suit relates." 26

U.S.C. $ 6s32(a).
2. 31 U.S.C. g 3343.

The court also has jurisdiction under 31 U.S.C. $ 3343, since that statute is a moneymandating source of substantive law and the facts alleged in the June 18,2012 Complaint satisfr

the requirements for relief. See Curtin,9l Fed. Cl. at 687-88. Indeed, the Govemment does not

contest that Plaintiff "meets the statutory criteria" for relief. Gov't Resp. 3 ("The [United States

Court ofFederal Claims] has found [Section 3343] is money-mandating and thus that jurisdiction

properly exists over [P]laintiffs claims for a new check. Here, the facts indicate that [P]laintiff

meets the statutory criteria." (citing Curtin,9l Fed. Cl. at 687).

** *

For these reasons, the United States Court ofFederal Claims has jurisdiction to adjudicate

the claims alleged in the June 18, 2012 Complaint.

B. Standard Of Review For Pra ,Se Litigants.

The pleadings of a pro se plaintiff are held to a less stringent standard than those of

litigants represented by counsel . see Haines v. Kerner,404 u.s. 5lg, 520 (1972) (per curiam)

(holding that pro se complaints, "however inartfully pleaded,,' are held to ,,less stringent

standards than formal pleadings drafted by lawyers"). It has been the tradition of this court to

examine the record "to see if fa pro se] plaintiff has a cause of action somewhere displayed.,'

Manuel v. united states,78 Fed. cl. 3r,34 (2007) (quoting Ruderer v. united states, lgg ct. cl.

456,468 (1969)). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff s

complaint, the court "does not excuse [a complaint's] failures." Henke v. united states, 60 F .3d

795,799 (Fed. Cir. 1995); see also llozniak v. United States, 2lg Ct. Cl. 5g0, 5gl (1979)

(holding that even in a pro se tax suit a timely claim for refund must be filed to invoke the coun.s

jurisdiction).

C. Standard Of Review For A Motion For Summary Judgment pursuant To

RCFC 56.

on a motion for summary iudgment, the moving party must show that there is no genuine

issue as to any material fact, and that he is entitled to judgment as a matter of law. see

Moden v. united states,404 F.3d 1335, 1342 (Fed. cir. 2005) ("summary iudgment is only

appropriate if the record shows that there is no genuine issue as to any material fact and that thl

moving party is entitled to judgment as a matter of law."); see also RCFC 56(c). only genuine

disputes of material facts that might affect the outcome of the suit will preclude entry of

summary iudgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986) (,,As to

materiality, the substantive law will identify which facts are material. Only disputes over facts

that might affect the outcome ofthe suit under the goveming law will properly preclude the entry

of summary judgment. Factual disputes that are irrelevant or uffiecessary wiil not be counted.,,).

The existence of "some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for s'mmary iudgment." Id. at 2474g. To avoid summary judgment, the nonmoving party must put forth evidence sufficient for a reasonable finder of faCt

to retum a verdict for that party. Id. at 248-50.
The moving party bears the initial burden of demonstrating the absence of any genuine

issue of material fact. See Celotex Corp. v. Cqtrett, 477 U.S. 317, 325 (1986) (holding the

moving party must meet its burden "by 'showing'-that is, pointing out to the [trial court]-that

there is an absence of evidence to support the nonmoving party's case."); see also Riley &

Ephriam Constr. Co. v. United States, 408 F.3d 1369,1371(Fed. Cir. 2005) ("The moving party

bears the burden of demonstrating the absence of a genuine issue of material fact."). Once the

moving party demonstrates the absence of a genuine issue of material fact, the burden shifts to

the nonmoving party to show the existence of a genuine issue of material fact for trial. See

Novartis Corp. v. Ben Venue Labs, [nc.,271 F.3d 1043, 1046 (Fed. Cir. 2001) (explaining that,

once a movant demonstrates the absence ofa genuine issue of material fact, "the burden shifts to

the nonmovant to designate specific facts showing that there is a genuine issue for trial").

On a motion for summary judgment, "the inferences to be drawn from the underlying

facts . . . must be viewed in the light most favorable to the party opposing the motion." United

States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see dlso Anderson, 477 U.S. at 255 (hotding

that "all justifiable inferences be drawn in [the non-moving party's] favor."); Casitas Mun.

Il'ater Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir. 2008) ("[A]ll justifiable inferences

[are drawn] in favor of the party opposing summary judgment.").

D, PlaintifPs May 20,2014 Motion For Summary Judgment,

1. PlaintifPs Argument.

Plaintiff seeks summary judgment for "all relief sought in the complaint, including, but

not limited to: (1) payment of$1,182.46 plus interest;" (2) an award of punitive damages that

this court deems appropriate "for the undue delay caused by [the Govemment] in resolving this

issue;" (3) an order that prohibits offsetting his 2007 refund with any debts owed to federal

agencies not past due at the time when the 2007 tax refund was originally issued; and (4) an

order compelling the Government "to pay the full cost of the action, including any reasonable

amount determined to compensate Plaintiff s expenses in pursuing this case." Pl. Mot. 8-9.

To qualifr for relief under 31 U.S.C. $ 3343, i.e., obtain the 2007 tax refund check, ,,it

must be established that: (1) the check was lost or stolen without the fault of the payee, (2) the

check was negotiated and paid by the Treasurer on a forged endorsement of payee's name, and

(3) the payee did not participate directly or indirectly in the proceeds of such negotiation or

payment." Pl. Mot. 7 (citing 31 U.S.C. $ 3343(b) and Curtin, gl Fed. Cl. at 688). plaintiff

contends that the OSHP Report establishes undisputed facts that satisfu all three elements, which

are not contested by the Govemment.

In addition, Plaintiff argues that the Govemment's defense against punitive damages is .,a

legal question requiring a de novo determination by this [court]." pl. Mot. 7 (citing Gov't

Answer fl 26 ("[T]his [c]ourt has no jurisdiction to hear [p]laintifps claim for punitive

damages. . . because the united states has not waived sovereign immunity for such claims.")).

Plaintiff urges this court to consider the fact that the IRS's failure to redact Plaintiffs

identification number on the notice it issued to the CRC facilitated the other individual's ability

to appropriate Plaintiffs refund check. Plaintiff also contends that the IRS's loss of Plaintiffs

original tax retum "contributed to the resulting misappropriation." pl. Mot. 7. In addition,
Plaintiff asserts that the IRS failed to take adequate action to resolve this issue after being

informed by an Ohio law enforcement officer that Plaintiff s refund check had been cashed by a

different individual, and that Plaintiff had not participated in the misappropriation, either directly

or indirectly. Pl. Mot. 7.

Plaintiff also argues that his 2007 refund check is not subject to the United States

Department ofTreasury Offset Program, that "allows the Treasury to transfer a taxpayer's refund

to another federal agency to pay a taxpayer's past due debt," because Plaintiff did not have any

past due debts owed to any federal agency when his tax refund was due in 2008, or in 2009 after

he resubmiued his 2007 tax retum. Pl. Mot. 8 (citing 31 U.S.C. 93720A(a)). Accordingly, if his

2007 refund was reduced, pursuant to 26 U.S.C. 6402(d), that reduction would amount to "an

offset by illegal exaction." Pl. Mot. 8.

2. The Governmentts Response.

The Govemment confirms that the "operative facts of the case" are not disputed. Gov,t

Resp. 2. Accordingly, the Govemment agees that Plaintiff qualifies for reissuaace of his 2007

tax refund check, in the amount of $1,182.46, under 31 U.S.C. $ 3343.4 Gov't Resp. 1. But,

"summary judgment should be denied to t1re extent Plaintiff seeks interest [on that amount],

punitive damages, or a ruling that payment [of that amount] is not subject to [the Treasury offset

Programl." Gov't Resp. 6.

First, Plaintiff cannot recover interest on his 2007 tax refund, because 31 U.S.C. $ 3343,

does not provide for recovery of interest. Gov't Resp. 4 (citing 3l U.S.C. g 3343(b) (.,The

Secretary of the Treasury shall pay from the Fund to a payee or special endorsee of a check

drawn on the Treasury or a depositary designated by the secretary the amount of the check

without interestt.]). A reissuance of a tax refund check under the check Forgery Insurance

Fund, established by 31 U.S.C. $ 3343, is technically a new payment, not a tax refund. So,

"[w]hile tax overpayments are refunded with interest," new payments pursuant 3l U.S.C. $ 3343

are made in "the amount of the [original] check without interest.,' Gov't Resp. 4 (citing

Clarkv.United Stqtes,206 F. Supp.2d.954 0{.D. Ind.2002), aff'd326 F.3d 911 (7th Cir.

2003)).

Second, the united states court of Federal claims does not have jurisdiction to

adjudicate Plaintiffs claim for punitive damages. The Tucker Act is "only a jwisdiction statute; it does not create any substantive right enforceable against the United States for money

damages." Gov't Resp. 4-5 (intemal quotations omitted) (quoting United States v. Mitchetl,445

u.s. 535, 538 (1980) and restan, 424 u.s. at 398). Therefore, plaintiff must "identify a

substantive right for money damages against the United States separate from the Tucker Act.,'

'The facts establish that Plaintiff has met the conditions established by 31 U.S.c. g 3343.

Gov't Resp' 3. First, the 2007 refund check was "deliberately redirected by another individual',

"without Plaintiff s knowledge." Gov't Resp. 3 n.4. second, that individual cashed the check,

endorsing it under "Mark Hill." Gov't Resp. 3 n.4. Third, "according to the oSHp

investigation," Plaintiff was not aware of the individual impersonating him, and therefore hadn't

"participated in any part of the proceeds of the negotiation or payment." Gov't Resp. 3 n.4.
Gov't Resp. 5 (intemal quotations omitted) (quoting Todd v. United States, 386 F.3d 1091, 1094

(Fed. Cir. 2004)). Plaintiff s refund claim is made pursuant to 3l U.S.C. g 3343, but that Section

does not contain a punitive damages provision. And, Plaintiff fails to identifr an altemative

source of law that would provide for recovery of punitive damages. As such, this court does not

have jurisdiction to adjudicate Plaintiffls claim for punitive damages. Gov't Resp. 4.

Third, the reissuance of Plaintiff s 2007 tax refund check, under the Check Forgery

Insurance Fund, is subject to the Treasury Offset Program, established by 31 U.S.C. g 3716,

which "provides for offsets against any federal payments, except those specifically excepted, in

the amount of any debt certified to the Secretary of the Treasury under the Debt Collection

Act."' Pertinent case law indicates that a wide range of federal payments, including awards of

attomey's fees and "repayment of improperly seized funds," are subject to offset. Gov't Resp. 6

(citing United States v. Approximately $3,174.00 in U.S. Currency, 928 F. Supp. 2d. 1040 (E.D.

Wis. 2013)). Payments made pursuant to 3 I U.S.C. $ 3343, however, are not exempt from

operation of the Treasury Offset Program. As a result, payment of Plaintiff s 2007 tax refund

check would be "subject to offset . . . , should [P]laintiff have a qualifying debt." Gov't Resp. 6

(citing 3l U.S.C. g 3716(c)).

3. The Court's Resolution.

a. Plaintiffls Entitled To $1,182.46.

Section 3343(b) provides that

(b) The Secretary of the Treasury shall pay from the Fund to a payee or special

endorsee of a check drawn on the Treasury or a depositary designated by the

Secretary the amount of the check without interest if in the determination of the

Secretary the payee or special endorse establishes that-

(1) the check was lost or stolen without the fault of the payee or a holder

that is a special endorsee and whose endorsement is necessary for further

negotiation;

(2) the check was negotiated later and paid by the Secretary or a

depositary on a forged endorsement of the payee,s or special endorsee's

name; and

(3) the payee or special endorsee has not participated in any part of the

proceeds ofthe negotiation or payment.

3l u.s.c. g 3343(b).

s Plaintiff s December 6,2013 Motion For Summary Judgment cites 26 U.S.c. $ 6402 in

addressing the issue of offset. Gov't Resp. 5 n.5. Section $ 6402 ..permits off.".t, fro.

overpayments of tax," but a reissuance of plaintiffs 2007 tax refund check, pursuant to 31

U.S.C. S 3343, is a new payment, not a tax refund. Gov't Resp. 5 n.5. Thus, 26^U.S.C. g 6402

does not apply. Gov't Resp. 5 n.5.

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The evidence adduced by both parties, discussed herein, demonstrates that Plaintiffs

claim meets the requisite conditions for payment of $1,182.46, under the Check Forgery

Insurance Fund, 31 U.S.C. $ 3343. Compl. Ex. 4; Gov't Resp.2,3 n.4; Gov't Resp. Ex. 2.

b. Interest.

Cognizant of Plaintiff s pro se status, the court considers the June 18,2012 Complaint to

allege two distinct claims: (1) a tax refund, pursuant to 28 U.S.C. $ 1346; and (2) reissuance of

his stolen June 5, 2009 refund check, pusuant to 31 U.S.C. g 3343. Compl. at 1 (citing 28

U.S.C. $ 1346); Pl. Mot. 7 (arguing that Plaintiff qualifies for relief under 31 U.S.C. $ 3343).

As discussed above, the United States Court of Federal Claims has jurisdiction to

adjudicate a tax refund claim pursuart to 28 U.S.C. $ 1346. The relevant goveming statute

conceming interest,26 U.S.C. $ 6611, provides: "Interest shall be allowed and paid upon any

overpayment in respect ofany intemal revenue tax[.]" The IRS, in tum, has interpreted Section

661 I to allow, generally, the payment of interest "on any overpayment any tax . . . from the date

of overpayment of the tax," with some exceptions. 26 C.F.R. $ 301.6611-l;6 see also Marsh &

McLennan Cos. v. United States,302 F.3d 1369, 137213 (Fed. Cir. 2002) (describing the

interaction between 26 U.S.C. g 6611 and 26 C.F.R. $ 301.6611-1). Relevant to Plaintiffs

situation is section O ofthat regulation that provides:

Refund of overpayment. No interest shall be allowed on any overpayment of tax

imposed by subtitle A ofthe Code if such overpayment is refunded-

(l) In the case of a retum filed on or before the last date prescribed for

filing the retum ofsuch tax (determined without regard to any extension of

time for filing such return), within 45 days after such last date, or

(2) After December 17,1966, in the case ofa retum filed after the last day

prescribed for filing the retum, within 45 days after the date on which the

retum is filed.

o Section (g) defines the interest period:

Period for which interest allowable in case of refunds. If an overpayment of tax is

refunded, interest shall be allowed from the date of the overpayment to a date

determined by the district director or the director of the regional service center,

which shall be not more than 30 days prior to the date of the refund check. The

acceptance of a refund check shall not deprive the taxpayer of the right to make a

claim for any additional overpayment and interest thereon, provided the claim is

made within the applicable period of limitation. However, if a taxpayer does not

accept a refund check, no additional interest on the amount of the ovemavment

included in such check shall be allowed.

26 C.F.R. g 301.6611-1(g).

lt
However, in the case of any overpayment of tax by an individual (other than an

estate or trust and other than a nonresident alien individual) for a taxable year

beginning in 1974, "60 days" shall be substituted for "45 days" each place it

appears in this paragraph.

26 c.F.R. $ 301.6611-1(i).

Plaintifftimely filed his 2007 tax retum on the "last date" for filing that retum: April 15,

2008. Compl. I l; see also 26 C.F.R. $ 301.6611-1(jX1). Interest would be allowed, therefore,

if the overpayment was not refunded within sixty days, i.e., June 14, 2008. Since the IRS

admitted to losing Plaintiff s 2007 tax retum, the IRS unquestionably missed that sixty-day

deadline. Compl. Ex. I (8/5/08 Letter fiom IRS to Mark Hill).

Instead, the IRS mailed the tax refund on June 5, 2009. Gov't Resp. Ex. I at A-2. Thus,

pursuant to section 301.6611-1(g), Plaintiff is owed interest from the date of overpaymentApril | 5, 2008, through at least thirty days prior to the date of the refund check-May 6, 2009,

which equals 386 days, excluding the end date. And, in fact, the June 5, 2009 tax refund

included interest of $6.46 on the initial refund of $1,176.00, that seemingly reflects interest for

this 386-day period. Gov't Resp. Ex. I at A-2. Therefore, Plaintiff has already received the

interest to which he is entitled under the Internal Revenue Code, and reissuance of Plaintiffs

refund check pursuant to 3 1 U.S.C. $ 3343 will necessarily include the interest Plaintiff is due.

In arguing that Section 3343 specifically precludes the payment of interest for

replacement checks, the Govemment fails to acknowledge that this is not the only statute at issue

in this case. The Govemment is conect that, under Section 3343, a taxpayer is not entitled to

interest on a reissued check. see 31 u.s.c. $ 3343 ("The secretary of the Treasury shall pay

from the [check Forgery Insurance] Fund . . . the amount of the check without interestf.)"

(emphasis added)). Section 3343 generally applies to all lost or stolen checks, regardless of

circumstance or originating agency. Id. (requiring only that the check be "drawn on the Treasury

or a depositary designated by the secretary). But, section 3343 does not prohibit the IRS from

awarding interest, pursuant to other statutes or court orders, and the Govemment cites to no

authority to the contrary. Gov't Resp. 4.7 And,, the June 18,2012 complaint makes it clear that

Plaintiff is pursuing a tax refund claim under 28 u.S.c. $ 1346, in addition to relief pursuant to

31 U.S.C. $ 3343. Nevertheless, for the reasons discussed above, when Plaintiff receives the

reissued check, he will be receiving interest therein, pursuant to 26 c.F.R. $ 301.6611-1. To the

extent that Plaintiff believes he is entitled to interest subsequent to May 6, 2009, the court

construes 26 C.F.R. g 301.6611-1(g) as precluding such relief. See 26 C.F.R. g 301.6611-1(g) ("lf an overpayment of tax is refunded, interest shall be allowed from the date of the

overpayment to a date determined by the district director or the director of the regional service

' The Govemment's citation to Clark,206 F. Supp. 2d 954, is inelevant, becatse Clark

did not involve a claim for interest, but only a request for a replacement check and related tort

allegations. see Clark,206 F. supp. 2dat956 (discussing 3l u.s.c. g 33a3); see also clark,

326 F.3d' at 912 n.\ (noting only that g 3343 allows "the secretary of the Treasury to issue

replacement checks, without interest").

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center, v)hich shall be not more than 30 days prior to the date of the refund check." (emphasis

added)).

In other words, since Plaintiff will receive the tax overpayment with interest, in the

amount of $ 1,1 82.46, no additional interest is due.

c. Punitive Damages.

In addition to reissuance of the 2007 tax refund check due him, Plaintiff seeks $ I ,182.46

in punitive damages pursuant to 3l U.S.C. $ 3343. Compl. at zt-5. Section 3343, however, does

not provide for punitive damages. See 31 U.S.C. $ 3343(b) (allowing only for payment from the

Check Forgery Insurance Fund to replace stolen Govemment-issued checks). And Plaintiff has

identified no other independent basis to allow for the award of punitive damages. To the extent

that the June 18,2012 Complaint alleges tortious actions on the part of the Govemment in the

misappropriation of Plaintiffs 2007 Federal income tax refund, the United states court of

Federal Claims does not have jurisdiction to hear claims under the Federal Tort Claims Act. See

28 U.S.C. $ 1346(b)(1) (granting exclusive jurisdiction to federal district courts to hear tort

claims against the united States). Moreover, the Federal rort claims Act does not waive

sovereign immunity for "[a]ny claim arising in respect of the assessment or collection of any

tax." 28 U.S.C. $ 2680(c); see also Aetna Cas. & Sur. Co. v. united States,7l F.3d 475. 477_79

(2d cir. 1995) (holding that payment ofa retund falls within g 26s0(c)). Therefore, plaintiffs

request for punitive damages is denied.

d, The Offset.

The Govemment argues that, if Plaintiff has a qualifying debt, payment from the check

Forgery Insurance Fund or payment resulting from judgment of the united states court of

Federal claims "must be subject to offset under the Treasury offset program." Gov't Resp. 6.

The Government, however, did not file a counterclaim in this case. And to the court's

knowledge, has not filed an action for an offset in another case. Therefore, Plaintiff s request for

a declaratory judgment is not ripe and a declaratory judgment on this issue would consiitute an

impermissible advisory opinion because, at present, there is no "case or controversy', as to the

offset. ,See United Pub. Ilorks of Am. (C.t.O.) v. Mitchett,330 U.S. 75, tt6 (1947) (.,It is clear

that the declaratory judgment procedure is available in the federal courts only in cases involving

actual controversies and may not be used to obtain an advisory opinion in a controversy not yet

arisen."). If the Government withholds payment, pursuant to the Treasury offset irogram,

Plaintiff may file a complaint inthe appropriate venue at that time.

IV. CONCLUSION,

For these reasons, Plaintiffs December 6,2013 Motion For Summary Judgment is

granted-in-part and denied-in-part. The Govemment is ordered to issue a check in the amount of

$1,182.46, pursuant to 31 U.S.C. $ 3343.

SUSAN G. BRADEN

IT IS SO ORDERED.

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