                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-5091

                              BASIL N. STEPHANATOS,

                                                      Plaintiff-Appellant,

                                           v.

                                   UNITED STATES,

                                                      Defendant-Appellee.


      Basil N. Stephanatos, of Wayne, New Jersey, pro se.

       Christine D. Mason, Trial Attorney, Tax Division, Appellate Section, United States
Department of Justice, of Washington, DC, for defendant-appellee. With her on the
brief were Nathan J. Hochman, Assistant Attorney General, and Richard Farber,
Attorney.

Appealed from: United States Court of Federal Claims

Judge Lawrence M. Baskir
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-5091

                                 BASIL N. STEPHANATOS,

                                                 Plaintiff-Appellant,

                                            v.

                                    UNITED STATES,

                                                 Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 06-CV-781, Judge Lawrence
M. Baskir.

                           __________________________

                           DECIDED: January 6, 2009
                           __________________________


Before MICHEL, Chief Judge, PROST and MOORE, Circuit Judges.

PER CURIAM.

      Plaintiff-Appellant Basil N. Stephanatos appeals a decision of the United States

Court of Federal Claims granting the government’s motion to dismiss his complaint.

Stephanatos v. United States, 81 Fed. Cl. 440 (2008). Because the complaint was

properly dismissed, we affirm.

                                    I. BACKGROUND

      Mr. Stephanatos filed a complaint with the U.S. Court of Federal Claims on

November 21, 2006. The complaint alleged a number of illegal actions by the U.S.

government, including constitutional and statutory violations, and sought a refund for the

taxes paid by Mr. Stephanatos for 1992, 1999, 2000, 2004, and 2005. On November
29, 2006, Mr. Stephanatos moved to amend his complaint, which the court allowed.

This amendment added the tax year 2006 to the complaint.              The court ultimately

dismissed the complaint for a variety of reasons, as discussed in more detail below.

       Before getting to the Court of Federal Claims, Mr. Stephanatos raised the same

or similar issues before the U.S. Tax Court, the U.S. District Court for the District of New

Jersey, and the U.S. Court of Appeals for the Third Circuit. In the U.S. Tax Court, Mr.

Stephanatos claimed he was entitled to a reduction in the deficiencies and penalties

that had been assessed against him for the years 1999 and 2000. The court found that

he was not entitled to any reductions and had to pay the assessed penalties.

Stephanatos v. Comm’r, 87 T.C.M. (CCH) 1429 (2004). The Third Circuit affirmed.

Stephanatos v. Comm’r, 112 F. App’x 868 (3d Cir. 2004) (unpublished table decision),

cert. denied, 543 U.S. 1123 (2005).

       In the U.S. District Court for the District of New Jersey, Mr. Stephanatos brought

suit against a number of parties, including the U.S. government and the Tax Court

judge, alleging that they had violated his constitutional and statutory rights, and

“engaged in extortion, fraud, racketeering, conspiracy, obstruction of justice, and

treason.” Stephanatos v. Cohen, No. 06-1310, 2006 WL 2872519, at *1 (D.N.J. Aug. 7,

2006). He also sought monetary damages and tax refunds for 1992, 1999, and 2000.

Id.   That court granted the defendants’ motion to dismiss under Fed. R. Civ. Pro.

12(b)(1), finding that Mr. Stephanatos’s challenges to the United States taxation system

had been previously raised and adjudicated, and that Mr. Stephanatos raised the

constitutional and other federal injuries “solely for the purpose of attempting to invoke

[the district c]ourt’s jurisdiction.” Id. at *2. The court declined to exercise jurisdiction




2008-5091                                    2
over any state law claims that Mr. Stephanatos might have alleged, and dismissed any

other pending motions or claims under Fed. R. Civ. Pro. 12(b)(1).        As before, Mr.

Stephanatos appealed to the Third Circuit; that court affirmed the district court’s

decision to dismiss with prejudice, stating that his arguments had “no arguable basis in

fact or law” and that the district court “lacked jurisdiction to entertain many of

Stephanatos’s claims because they were obviously frivolous and without merit.”

Stephanatos v. Cohen, 236 F. App’x 785, 786–87 (3d. Cir. 2007).

                                     II. DISCUSSION

         We have jurisdiction over an appeal from the Court of Federal Claims’ final

judgment under 28 U.S.C. § 1295(a)(3). This court reviews all of the issues decided by

the Court of Federal Claims in this case de novo. Nw. LA Fish & Game Pres. Comm’n

v. United States, 446 F.3d 1285, 1289 (Fed. Cir. 2006) (failure to state a claim); Pines

Residential Treatment Ctr., Inc. v. United States, 444 F.3d 1379, 1380 (Fed. Cir. 2006)

(subject matter jurisdiction); Faust v. United States, 101 F.3d 675, 677 (Fed. Cir. 1996)

(res judicata).

                                    A. The Tax Claims

         Mr. Stephanatos argues that the court’s decision to dismiss the case for lack of

subject matter jurisdiction is clearly erroneous “because the defendant acknowledged

the existence of the legal claims before the court.”      The Court of Federal Claims,

however, has inherent power to determine whether it has jurisdiction, even when the

parties agree otherwise. See Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.

2004).

         The Court of Federal Claims correctly determined that it did not have subject

matter jurisdiction over Mr. Stephanatos’s claims for a refund of the taxes and penalties


2008-5091                                    3
assessed for 1999 and 2000. Mr. Stephanatos chose to bring those claims before the

Tax Court first, and when he did so, he put the entire matter into the hands of that court.

Erickson v. United States, 309 F.2d 760, 767 (Ct. Cl. 1962) (“[T]he Tax Court’s

jurisdiction, once it attaches, extends to the entire subject of the correct tax for the

particular year.”). Thus, the Court of Federal Claims properly dismissed these claims.

       While Mr. Stephanatos did not bring his claim for tax years 1992 and 2004–2006

before the Tax Court, he did bring the 1992 tax claims before the District Court for the

District of New Jersey. Those claims were dismissed with prejudice (as were tax years

1999 and 2000) under Fed. R. Civ. Pro. 12(b)(1), and the Court of Federal Claims held

that it was barred from hearing the claims by principles of res judicata.

       Challenging this dismissal under Fed. R. Civ. Pro. 12(b)(1), Mr. Stephanatos

correctly points out that a case dismissed for lack of subject matter jurisdiction has not

received a final judgment on the merits for purposes of res judicata. See Lewis v.

United States, 70 F.3d 597, 602–04 (Fed. Cir. 1995). This is true even where a court

purports to dismiss a case with prejudice. See, e.g., Scott Aviation v. United States,

953 F.2d 1377, 1378 (Fed. Cir. 1992) (“Without jurisdiction, the Claims Court cannot

presume to dismiss the complaint with prejudice.”).

       Whenever possible, then, frivolous claims should be dismissed under Fed. R.

Civ. Pro. 12(b)(6) for failure to state a claim upon which relief can be granted, which is a

final adjudication on the merits. Lewis, 70 F.3d at 602–03 (recognizing this as the

“general rule”). Nonetheless, we affirm the court’s decision to dismiss, because we

agree with every court that has evaluated these claims—the claims are obviously

frivolous and without merit.




2008-5091                                    4
      The discussion above applies with equal force to Mr. Stephanatos’s claims for

tax and penalty refunds from 2004–2006. For the 2004 and 2005 claims, the Court of

Federal Claims treated the government’s motion under Fed. R. Civ. Pro. 12(b)(1) as a

Fed. R. Civ. Pro. 12(b)(6) motion and dismissed the claims. Stephanatos, 81 Fed. Cl. at

442. The 2006 claims were dismissed for the same reasons. In discussing this result,

the court stated that “[t]he many efforts that [Mr. Stephanatos] has made to persuade

courts of the merits of his position have been uniformly unsuccessful. His position with

respect to these later tax years can fare no better here.” Id. at 444. In other words,

although the tax year might be different, the argument made regarding what taxes and

penalties Mr. Stephanatos owes remains the same. As such, the Court of Federal

Claims correctly dismissed his 2004–2006 claims under Fed. R. Civ. Pro. 12(b)(6).

                                    B. Other Claims

      Mr. Stephanatos raises (or seems to raise) a variety of other claims, some

arguably for the first time on appeal. He claims that he is entitled to money damages for

illegal exaction and that the government has violated Treasury regulations, Internal

Revenue Manual procedures, and the Takings Clause. Mr. Stephanatos also states

that his tax filings were the result of a unilateral mistake, that the government acted

unconscionably, and that he is entitled to equitable recoupment to avoid unjustly

enriching the government.

      First, Mr. Stephanatos’s equitable recoupment claim is not supported by his

pleadings. Although Mr. Stephanatos repeatedly cites Bull v. United States, 295 U.S.

247 (1935), to support his claim, he fails to recognize other guidance on that issue. In

United States v. Dalm, 494 U.S. 596, 605 n.5 (1990), the Court noted: “Since Bull, we

have emphasized that a claim of equitable recoupment will lie only where the


2008-5091                                  5
Government has taxed a single transaction, item, or taxable event under two

inconsistent theories.” Mr. Stephanatos, as far as this court can tell, has not identified

any inconsistent theories asserted by the government.        And to the extent that Mr.

Stephanatos is claiming a breach of contract, he does not allege that any contract

existed between himself and the government—a necessary prerequisite to such a claim.

Both of these claims fail because they do not state a claim upon which relief may be

granted.

      Regarding Mr. Stephanatos’s claim that the government violated Internal

Revenue Manual procedures and Treasury regulations, these claims appear to be

alternate ways of phrasing Mr. Stephanatos’s 1992, 1999, 2000, and 2004–2006 tax

claims, which we concluded were properly dismissed.

      Next, Mr. Stephanatos argues that he is owed money damages because his

funds were illegally exacted from him.      Illegal exaction “involves money that was

improperly paid, exacted, or taken from the claimant in contravention of the Constitution,

a statute, or a regulation.” Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir.

2005) (quotation omitted). The illegal exaction claim was not properly raised before the

Court of Federal Claims. Mr. Stephanatos merely stated in a footnote that “it should be

noted that although plaintiff does not expressly use the term ‘illegal exaction’ or

‘wrongful exaction’ throughout this instant complaint, it should be construed as if the

terms . . . are being used throughout this complaint.” Arguments that are not fleshed

out and are merely raised in footnotes are not preserved. See SmithKline Beecham

Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (discussing footnotes in

appeals briefs); see also Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244,




2008-5091                                   6
1250 n.2 (Fed. Cir. 2008). We may treat this argument as waived, since this court

“does not ‘review’ that which was not presented to the [trial] court.” Sage Prods., Inc. v.

Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997). But even if we were to

evaluate this argument, as before, it appears that Mr. Stephanatos’s illegal exaction

claim is in essence the same argument he made regarding his tax and penalty liabilities,

which we again note were properly dismissed.

       Mr. Stephanatos also claims that the government violated the Takings Clause of

the Fifth Amendment.      This argument cannot succeed, regardless of whether Mr.

Stephanatos is alleging a per se or regulatory taking. See Commonwealth Edison Co.

v. United States, 271 F.3d 1327, 1339 (Fed. Cir. 2001) (en banc) (“[R]egulatory actions

requiring the payment of money are not takings.”); Branch v. United States, 69 F.3d

1571, 1576 (Fed. Cir. 1995) (“[E]ven though taxes or special municipal assessments

indisputably ‘take’ money from individuals or businesses, assessments of that kind are

not treated as per se takings under the Fifth Amendment.”).

       We affirm the Court of Federal Claims’ disposition as it relates to his tort, Privacy

Act, Freedom of Information Act, and other constitutional claims. We likewise affirm the

court’s holding that it did not have jurisdiction over the equitable relief requested in this

case. To the extent that Mr. Stephanatos makes other arguments, we find them to be

without merit.

                                      CONCLUSION

       For the reasons stated above, we affirm the Court of Federal Claims’ decision to

dismiss Mr. Stephanatos’s complaint.




2008-5091                                    7
