# In the United States Court of Federal Claims

(Pro Se)

SANDRA HATHCOCK

,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant. ) ) ) ) ) ) ) ) ) ) ) No. 2 1

- 1557T (Filed: December 6, 2021 )

Sandra Hathcock , Pro Se, Buffalo, NY.

Patrick Phippen , Trial Attorney, Tax Division, U.S. Department of Justice, Washington, DC.

OPINION AND ORDER

KAPLAN, Chief Judge.

The pro se p laintiff in this case, Sandra Hathcock, seek s relief from a Notice of Deficiency the Internal Revenue Service ( “ IRS ” ) issued her on November 2, 2020. See Compl. at 1, Docket No. 1. S pecifically, s he requests that the Court “reinstate [] ” her status as head of household so that she may recover “the earne d income credit and additional child tax credit” she

claimed on her 2019 tax refund . Compl. at 3.

Presently before the Court is the government ’ s motion to dismiss Ms. Hathcock ’ s complaint for lack of subject

- matter jurisdiction or, in the alternative, fo r failure to state a claim upon which relief may be granted , pursuant to Rule s 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”)

. See Def. ’ s Mot. to Dismiss (“Def. ’ s Mot.”), Docket No. 8. For the reasons set forth below, the govern ment ’ s motion under RCFC 12(b)(1) is GRANTED

, and the complaint is DISMISSED without prejudice

. 1

1 Along with her complaint, Ms. Hathcock filed a motion for leave to proceed in forma pauperis.

Docket No. 2. Pursuant to 28 U.S.C. § 1915(a)(1), “any court 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.” A plaintiff need not “be absolutely

destitute to e njoy the benefit of the statute.” Adkins v. E.I. DuPont De Nemours & Co. , 335 U.S. 331, 339 (1948). An affidavit that demonstrates the plaintiff ’ s inability to both pay the fee and still provide for herself and any dependents is sufficient. See id. ; see al so Waltner v. United

### 2 BACKGROUND

When Ms. Hathcock filed her 2019 income tax return

, she claimed her two granddaughters as dependents , filed as “ head of household

, ” and requested a refund in the amount of $3,419.00. Compl. Ex. 4(a), Docket No. 1

- 3. 2 The IRS did not issue the requested refund, but instead, on February 17, 2020, notified Ms. Hathcock that her return had been

selected for audit. App. to Def. ’ s Mot. to Dismiss (“App. to Def. ’ s Mot.”) at 2−3, 18−20 , Docket

No. 8

- 1

.

On November 2, 2020, t he IRS issued Ms. Hathcock a Statutory Notice of Deficiency (“Notice”)

. App. to Def. ’ s Mot. at 4

– 6

. In the Notice, the IRS reject ed her claim that her grandchildren were her dependents and as a result, found her ineligible for head of household filing status , as well as for the earned income or child tax credit s

. Compl. at 1; App. to Def. ’ s
Mot. at 4

– 6

. The IRS ’ determination increased Ms. Hath cock ’ s tax liability to $ 5,970.00

— an

amount $ 2,551.00 over her requested refund

. Compl. Ex. 5( a)

. The IRS also imposed an

additional $510.20 in penalties and interest. Id. 5(b)

.

Ms. Hathcock filed a timely petition in United States Tax Court on January 11, 2021, challenging the IRS ’ deficiency determination

. App. to Def. ’ s Mot. at 9

– 10 . T hat case is currently pending

. See Hathcock v. Comm ’ r , No. 1849

- 21 (T.C. Jan. 11, 2021).

In the meantime, o n February 4, 2021, Ms. Hathcock attempted to file a supplemental pleading in the Tax Court

. App. to Def. ’ s Mot. at 24

– 25 . Th e Tax Court incorrectly docketed the pleading as a new petition

, and then dismissed the new pleading as duplicat ive on July 1, 2021

. S ee Hathcock v. Comm ’ r , No. 5593

- 21 (T.C. July 1, 2021), Docket No. 10

. 3

States , 93 Fed. Cl. 139, 143 (2010) (stating that the question is whether “paying such fees would constitute a serious hardship on the plaintiff”) (internal quotation and citations omitted). Ms. Hathcock has made the requisite showing

, and her motion for leave to proceed in forma pauperis

is GRANTED

.

2 Plaintiff ’ s Complaint is accompanied by a series of exhibits, see Docket No. 1

- 3, which are paginated by hand . T he Court refers to the exhibits ’ hand

- numbered pagination.

3 Although not relevant to the disposition of the pending motions to dismiss, the Court notes that during this period of time, o n March 15, 2021, the IRS prematurely assessed the additional tax

, removal of credits, and the accu racy penalty described in the November 2, 2020 N otice of

D eficiency, plus $61.64 in underpayment interest

, leaving Ms. Hathcock with a balance due of $3,122.84. App. to Def. ’ s Mot. at 2

– 3 ; s ee I.R.C. § 6213(a) (providing in pertinent part that the IRS may not assess a tax until a decision of the Tax Court becomes final following the timely filing of a petition ). On April 2 3 , 2021, t he IRS r eversed t he assessment, and issued the requested refund (in the amount of $3,419.00) plus the overpayment interest it had improperly assessed, in accordance with I.R.C. § 6213(a). App. to Def. ’ s Mot. at 3 . Ms. Hathcock ’ s IRS Account Transcript reflects that upon the reversal of the assessment, as of May 31, 2021, she ha d no outstanding tax liability. See id

.

### 3 A pparently under the impression that the Tax Court had “denied” her original claim

, Ms.

Hathcock filed th is action less than one week later , characterizing her complaint as a “petition against the U.S. Tax Court

. ” Compl. at 1

. She seeks a determination that she is entitled to head of

household status and to “the earned income credit and additional child tax credit” to “wipe the

slate clean.” Id

. at 3.

DISCUSSION

In deciding a motion to dismiss for lack of subject matter jurisdiction, the Court accepts as true all undisputed facts in the pleadings and draw s all reasonable inferences in favor of the plaintiff. Trusted Integration, Inc. v. United States , 659 F.3d 1159, 1163 (Fed. Cir. 2011). The

C ourt may “inquire into jurisdictional facts” to determine whether it has jurisdiction

, Rocovich v.

United States

, 933 F.2d 991, 993 (Fed. Cir. 1991) , and may consider all pleadings as well as matters of which it may take judicial notice, see Rocky Mountain Helium, LLC v. United States

, 841 F.3d 1320, 1325 (Fed. Cir. 2016) (citing RCFC 10(c) ). The plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Brandt v. United

States , 710 F.3d 1369, 1373 (Fed. Cir. 2013). Further, though it is well established that complaints filed by pro se plaintiffs (like this one) are held to “less stringent standards than formal pleadings drafted by lawyers

, ” Haines v. Kerner , 404 U.S. 519, 520 (1972)

, even pro se plaintiffs must persuade the C ourt that jurisdictional requirements have been met

, Bernard v.

United St ates , 59 Fed. Cl. 497, 499 (2004), aff ’ d , 98 F. App ’ x 860 (Fed. Cir. 2004).

The Tucker Act grants the Court of Federal Claims the power “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congr ess 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). Congress provided the necessary waiver of th e United States ’ sovereign immunity with respect to suits brought against it for the refund of federal taxes in 28 U.S.C. § 1346 . That provision states that the Court of Federal Claims has concurrent jurisdiction (with the 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 collec ted . . . or any sum alleged to have been excessive or in any manner wrongfully collected under the internal

- revenue laws.” 28 U.S.C. § 1346 (a)(1).

This grant of jurisdiction, however, is subject to the statutory bar set forth at I.R.C. § 6512

. Sectio n 6512(a) provides, with limited exceptions not relevant here

, that a taxpayer

cannot fil e suit in “any court” seeking a tax refund for the same taxable year as to wh ich they received a notice of deficiency and file d a petition with the Tax Court. Smith v. United States

, 495 F. App ’ x 44, 48 (Fed. Cir. 2012) ; see also Cheesecake Factory Inc. v. United States , 111 Fed. Cl. 686, 692 (2013) (same); Solitron Devices v. United States , 862 F.2d 846, 848 (11th Cir. 1989) (“A bar to the exercise of jurisdict ion by the district court over a tax case is triggered when the taxpayer files a petition with the Tax Court.”).

Because Plaintiff properly and timely filed a petition in the Tax Court regarding the

Notice of Deficiency issued with respect to her 2019 tax return, this Court lacks jurisdiction over

### 4 her claim. Accordingly

, the government ’ s motion, Docket No. 8, is GRANTED

, and Plaintiff ’ s complaint is DISMISSED without prejudice

.

IT IS SO ORDERED.



## Elaine D. Kaplan

ELAINE D. KAPLAN

Chief Judge