                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT

                   __________

                   No. 15-2232
                   __________

       ROBERT POLSKY; LISA POLSKY,
                             Appellants

                        v.

        UNITED STATES OF AMERICA
                __________

  On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
      (D.C. Civil Action No. 2:14-cv-00655)
   District Judge: Honorable Timothy J. Savage
                    __________

  Submitted Pursuant to Third Circuit LAR 34.1(a)
               November 25, 2016

Before: SHWARTZ, COWEN, and FUENTES, Circuit
                   Judges


       (Opinion Filed: December 15, 2016)
Robert Polsky
Lisa Polsky
9 Jody Drive
Plymouth Meeting, PA 19462

Pro Se

Karen G. Gregory, Esq.
John A. Nolet, Esq.
Joan I. Oppenheimer, Esq.
United States Department of Justice
Tax Division
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, DC 20044

Beatriz T. Saiz, Esq.
E. Christopher Lambert, Esq.
United States Department of Justice
Tax Division
P.O. Box 227
Ben Franklin Station
Washington, DC 20044

Counsel for Appellee United States of America

                        __________

                OPINION OF THE COURT
                      __________
PER CURIAM.




                             2
       Robert and Lisa Polsky, the parents of a permanently
disabled daughter, claimed a child tax credit on their 2010
and 2011 income taxes. However, the Internal Revenue
Service (IRS) disallowed the credit because the Polskys’
daughter was too old to qualify for it.

       After a few false starts, the Polskys challenged the
disallowance of the credit by bringing suit in the United
States District Court for the Eastern District of Pennsylvania.
They argued that the tax credit’s definition of “qualifying
child,” which has an age cap, incorporates by reference a
different section of the Internal Revenue Code that has no age
cap at all for a person who is permanently disabled. The
Polskys contended that this second definition of “qualifying
child” overrides the age cap in the child tax credit.

       In granting the IRS’s motion to dismiss, the District
Court held that the plain language of the Code supported the
IRS’s position: the age cap of the child tax credit section of
the Code controlled, and the credit was therefore properly
denied. Having reviewed the interplay between the two
sections of the Code, we agree with the District Court and, for
the reasons set forth below, will affirm its judgment.

                              I.

        After the Polskys attempted to claim the child tax
credit for the 2010 and 2011 tax years, the IRS issued them a
notice of a “mathematical or clerical error” 1 disallowing the
credit because their daughter was older than 17. In response,
the Polskys submitted amended returns, specifically
requesting that the IRS review whether their daughter
1
    See 26 U.S.C. § 6213(g)(2).




                              3
qualified for the tax credit. According to the Polskys, the IRS
refused to rule on the amended returns because they were
substantially the same as the original returns. The Polskys
next filed a petition in the Tax Court. The Tax Court
dismissed the petition, however, because the IRS had not
issued a notice of deficiency. See United States v. Mellon
Bank, N.A., 545 F.2d 869, 873 n.10 (3d Cir. 1976) (“[A]
notice of deficiency is a jurisdictional prerequisite for a
taxpayer’s suit in the Tax Court.”).

       In 2014, the Polskys, who have been pro se
throughout, filed an action in the District Court, alleging that
the IRS erroneously disallowed the child tax credit and
violated their due process rights by preventing them from
challenging the disallowance in Tax Court. 2 The United
2
   The Polskys labeled their filing as a “class action”
complaint and named Daniel I. Werfel, the IRS’s Acting
Commissioner, as the sole defendant. They also moved for
class certification. Contrary to the Polskys’ argument on
appeal, the District Court permissibly evaluated the United
States’ motion to dismiss before ruling on class certification.
See Greenlee Cty., Ariz. v. United States, 487 F.3d 871, 880
(Fed. Cir. 2007) (recognizing that courts can grant a motion
to dismiss without addressing class certification); Searles v.
Se. Pa. Transp. Auth., 990 F.2d 789, 790 n.1, 794 (3d Cir.
1993) (affirming order granting motion to dismiss for failure
to state a claim, while noting that the “district court did not
rule on the class certification because it ultimately concluded
that plaintiff failed to state a claim”); see also 3 William B.
Rubenstein, Newberg on Class Actions § 7:9 (5th ed. 2013)
(“Given the early nature of most motions to dismiss, courts
will often handle them prior to deciding a motion for class
certification.”). We note that courts have questioned whether




                               4
States filed a motion to dismiss, which the District Court
granted. In particular, the District Court held that the tax
credit is unavailable when the child has attained age 17 and
that the Polskys failed to state a constitutional due process
claim. Polsky v. Werfel, 87 F. Supp. 3d 748, 758-60, 763-66
(E.D. Pa. 2015). The Polskys appealed.




laymen pro se litigants may represent a class. See Fymbo v.
State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir.
2000) (holding that the district court did not abuse its
discretion by deciding that an unincarcerated pro se litigant
was not an adequate class representative). The District Court
also properly substituted the United States for Acting
Commissioner Werfel.        See 26 U.S.C. § 7422(f)(1)-(2)
(providing that a suit seeking a tax refund must be brought
against only the United States, not its officers or employees,
while allowing party substitution via court-ordered
amendment of the pleadings); Polsky v. Werfel, 87 F. Supp.
3d 748, 756-57 (E.D. Pa. 2015) (treating the action as a
refund suit “[b]ecause the jurisdictional and procedural
requirements for filing a refund suit are satisfied”).




                              5
                               II. 3

        The child tax credit, 26 U.S.C. § 24, allows certain
taxpayers to claim a credit against tax liability for each
qualifying child. A “qualifying child” means “a qualifying
child of the taxpayer (as defined in section 152(c)) who has
not attained age 17.” 26 U.S.C. § 24(c)(1) (emphasis added).

        The Polskys did not dispute that their daughter was
over 17 in 2010 and 2011. Instead, they argued that they are
entitled to the child tax credit regardless of their daughter’s
age because she meets the requirements of 26 U.S.C.
§ 152(c), which § 24(c)(1) incorporates by reference.
Section 152(c) defines “qualifying child” for purposes of a
taxpayer’s dependency deductions and provides an exception
to its own age requirements 4 for an individual
who is “permanently and totally disabled.” 26 U.S.C.
§ 152(c)(3)(B).
3
  We have appellate jurisdiction under 28 U.S.C. § 1291 and
exercise plenary review over the order granting the United
States’ motion to dismiss. See Cooper v. Comm’r, 718 F.3d
216, 220 n.5 (3d Cir. 2013). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).
4
  Generally, with respect to the dependency deduction, a
qualifying child must be under the age of 19 or a student
under the age of 24. See 26 U.S.C. § 152(c)(3)(A). In
addition, § 152(c)(1) includes requirements pertaining to the
child’s relationship with the taxpayer, principal place of
abode, percentage of self-support, and joint filing status.




                                6
                             III.

       We agree with the District Court that the Polskys are
not entitled to a child tax credit for their disabled daughter.
The age-cap exception in § 152(c)(3) does not supplant the
separate age limitation in § 24(c)(1). See Cushman v. Trans
Union Corp., 115 F.3d 220, 225 (3d Cir. 1997) (stating that,
as a general rule of statutory construction, “[w]e strive to
avoid a result that would render statutory language
superfluous, meaningless, or irrelevant”). To the contrary,
under the plain and unambiguous language of the Internal
Revenue Code, the age limitation for the child tax credit in
§ 24(c)(1) effectively overrides the age requirements and
exception for claiming a child as a dependent that are found
in § 152(c)(3). As the District Court correctly explained:

       Section 24 imports the basic qualifications from
       § 152(c), and adds an age limitation of
       seventeen years. . . . The age restriction in
       § 24(c)(1) is intended to end the tax credit when
       the child reaches seventeen years of age. In
       contrast, the special rule applicable to
       permanently and totally disabled dependents in
       § 152(c)(3)(B) is calculated to extend the tax
       deduction as long as the child is disabled.
       Therefore, the taxpayer can take a dependent
       deduction regardless of the child’s age as long
       as the child is permanently and totally disabled,
       but cannot receive a tax credit for a disabled
       child who, by the close of the taxable year, was
       seventeen years of age.

Polsky, 87 F. Supp. 3d at 759. In other words, the child tax
credit is available only when the “qualifying child” meets the




                              7
non-age-related requirements of § 152(c) and “has not
attained age 17.” 26 U.S.C. § 24(c)(1). Because the Polskys’
daughter was over 17 during the relevant tax years, they are
not entitled to the child tax credit.

        The Polskys also argued that the IRS violated their due
process rights by failing to issue a notice of deficiency, which
would have allowed them to seek redress in the Tax Court.
As a basis for this claim, the Polskys relied on 42 U.S.C.
§ 1983. That provision, however, does not apply to federal
actors, such as IRS employees. Brown v. Philip Morris Inc.,
250 F.3d 789, 800 (3d Cir. 2001) (“It is well established that
liability under § 1983 will not attach for actions taken under
color of federal law.”). In addition, neither the IRS nor the
United States can be sued under § 1983. See Accardi v.
United States, 435 F.2d 1239, 1241 (3d Cir. 1970) (holding
that “[t]he United States and other governmental entities are
not ‘persons’ within the meaning of Section 1983”). We have
also held that an action under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
“which is the federal equivalent of the § 1983 cause of action
against state actors,” Brown, 250 F.3d at 800, “should not be
inferred to permit suits against IRS agents accused of
violating a taxpayer’s constitutional rights.” Shreiber v.
Mastrogiovanni, 214 F.3d 148, 152 (3d Cir. 2000).

       In any event, we agree with the District Court that the
Polskys’ due process rights were not violated. Although they
could not bring their claims in the Tax Court, see 26 U.S.C.
§ 6213(b)(1) (providing that when a return contains a
mathematical error, the taxpayer has no right to file a petition
with the Tax Court), the Polskys’ due process rights were
protected by their ability under 26 U.S.C. § 7422 to sue for a
refund. See Zernial v. United States, 714 F.2d 431, 435 (5th




                               8
Cir. 1983) (per curiam) (“The refund claim procedure
provided in section 7422 adequately protects . . . due process
rights.”).

                             IV.

       For the foregoing reasons, we will affirm the order of
the District Court. 5




5
  We deny the Polskys’ motions “to consider new evidence”
and “to consider additional new evidence.” Our review is
limited to whether the dismissal of the complaint “was correct
in light of the facts pleaded in the complaint.” Maio v. Aetna,
Inc., 221 F.3d 472, 482 (3d Cir. 2000); see also Harris v. City
of Phila., 35 F.3d 840, 845 (3d Cir. 1994) (noting that issues
raised for the first time on appeal will not be considered).




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