In the United States Court of Federal Claims

(Pro Se)

SANDRA HATHCOCK,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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 No. 21-1557T

 (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 plaintiff in this case, Sandra Hathcock, seeks relief from a Notice of 

Deficiency the Internal Revenue Service (“IRS”) issued her on November 2, 2020. See Compl. at 

1, Docket No. 1. Specifically, she requests that the Court “reinstate[]” her status as head of 

household so that she may recover “the earned 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, for failure to state a claim 

upon which relief may be granted, pursuant to Rules 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 government’s motion under RCFC 12(b)(1) is GRANTED, 

and the complaint is DISMISSED without prejudice.

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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 enjoy 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 also Waltner v. United 
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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, the IRS issued Ms. Hathcock a Statutory Notice of Deficiency 

(“Notice”). App. to Def.’s Mot. at 4–6. In the Notice, the IRS rejected 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 credits. Compl. at 1; App. to Def.’s 

Mot. at 4–6. The IRS’ determination increased Ms. Hathcock’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. That case is 

currently pending. See Hathcock v. Comm’r, No. 1849-21 (T.C. Jan. 11, 2021).

In the meantime, on February 4, 2021, Ms. Hathcock attempted to file a supplemental 

pleading in the Tax Court. App. to Def.’s Mot. at 24–25. The Tax Court incorrectly docketed the 

pleading as a new petition, and then dismissed the new pleading as duplicative on July 1, 2021.

See Hathcock v. Comm’r, No. 5593-21 (T.C. July 1, 2021), Docket No. 10.

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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. The 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, on March 15, 2021, the IRS prematurely assessed the additional tax, 

removal of credits, and the accuracy penalty described in the November 2, 2020 Notice of

Deficiency, 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; see 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 23, 2021, the IRS reversed the 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 had no 

outstanding tax liability. See id.
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Apparently under the impression that the Tax Court had “denied” her original claim, Ms. 

Hathcock filed this 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 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 “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 Court that jurisdictional requirements have been met, Bernard v. 

United States, 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 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. 

§ 1491(a)(1). Congress provided the necessary waiver of the 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 collected . . . 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. Section 6512(a) provides, with limited exceptions not relevant here, that a taxpayer

cannot file suit in “any court” seeking a tax refund for the same taxable year as to which they 

received a notice of deficiency and filed 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 jurisdiction 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 
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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