       lfn tbe Wniteb $tates ~ourt of jfeberal ~laims FILED
                                 No. 16-1650T (Pro Se)                            OCT - 6 2017
                      (Filed: October 6, 2017 I Not For Publication)             U.S. COURT OF
                                                                                FEDERAL CLAIMS
                                            )    Keywords: Pro Se Complaint; Tax
 DENNIS J. HUELBIG, JR.,                    )    Refund; Subject Matter Jurisdiction;
                                            )    Motion to Partially Dismiss
                       Plaintiff,           )    Complaint; Motion for a More
                                            )    Definite Statement; Anti-Injunction
         v.                                 )    Act; Abatement.
                                            )
 THE UNITED STATES OF AMERICA,              )
                                            )
                       Defendant.           )
_ ___ ___ ____ ___                          )
Dennis J Huelbig, Jr., Las Vegas, NV, prose.

Blaine Ginroku Saito, Tax Division, U.S. Department of Justice, Washington, DC, with
whom were David 1 Pincus, Chief, Comt of Federal Claims Section, and David A.
Hubbert, Acting Assistant Attorney General, for Defendant.

                               OPINION AND ORDER

KAPLAN, Judge.

       Plaintiff Dennis J. Huelbig Jr., proceeding prose, filed this tax refund case on
December 15, 2016. See Compl., Docket No. 1. In addition to seeking a refund, he asserts
a claim for damages against the Internal Revenue Service (IRS) and requests an
abatement and declaratory relief. The government has moved to partially dismiss Mr.
Huelbig's complaint and for a more definite statement. For the reasons discussed below,
the government's motion is GRANTED. Further, Mr. Heulbig's motion to proceed in
forma pauperis is DENIED.

                                    BACKGROUND

       In his complaint, Mr. Huelbig appears to allege that he was owed a refund of
$315,111 for the 2009 tax year. Compl. ifif 13, 19. According to Mr. Huelbig, in August
2012, the IRS issued a tax refund check to him in the amount of $125,904.04. Id. if 9.
This check, however, was allegedly returned to the IRS as undeliverable. Id. Thereafter,
in October 2012, Mr. Huelbig allegedly filed a "Claim for Refund and Request for
Abatement" with the IRS using "Form 843." Id. if 10.

        More than a year later, on September 16, 2013, the IRS allegedly sent Mr.
Huelbig a ''Notice CP05 for the tax year 2011," which stated that the IRS was "holding
[his] refund while [it] finish[ed] reviewing [his] tax return." Id. if 11.

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          At some point, "[i]n an effort to be honest and reasonable," Mr. Heulbig allegedly
amended his 2009 tax return and "reduc[ed] the orginally claimed refund" of $315,111.
Id. 'if 13. Mr. Huelbig, however, asserts that the "original refund amount is still due and
owing" and that he remains "entitled to immediate possession" of those funds. Id. 'i['i[ 13,
19.

        Mr. Huelbig filed his complaint in this Court on December 15, 2016. He alleges
that the notice he received on September 16, 2013 serves as a "denial of [his] claim for
[a] refund." Id. 'if 14. He thus seeks the refund of the "amounts originally reported." Id. at
4. Further, he requests the "abatement of the unpaid portion of the assessment made
against" him; a "declaratory judgment providing the respective rights and duties of the
parties"; and damages in the amount of $400,000, including $100,000 in "exemplary and
punitive damages." Id. at 4-5.

        Along with his complaint, Mr. Huelbig filed a motion to proceed in forma
pauperis. See Docket No. 4. In his motion, Mr. Huelbig states that he is self-employed,
and that, within the last twelve months, he has received "gross receipts in the amount of
$24,000.00." Id. at 1.

        On June 14, 2017, the government filed a motion to partially dismiss the case for
lack of subject matter jurisdiction and for a more definite statement. Docket No. 15. Mr.
Huelbig has not filed a response.

                                       DISCUSSION

I.      Legal Standards

        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). However, the court may also "inquire into jurisdictional facts" to
determine whether it has jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed.
Cir. 1991). It is well established that complaints filed by prose plaintiffs (as is this one),
are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v.
Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even prose plaintiffs must persuade the
Court that jurisdictional requirements have been met. Bernard v. United States, 59 Fed.
CL 497, 499 (2004), aff'd, 98 Fed. App'x 860 (Fed. Cir. 2004).

         The Court of Federal Claims' jurisdiction derives primarily from the Tucker Act,
which grants the court jurisdiction to entertain "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)(l) (2012). The Tucker Act waives the sovereign immunity of the United States
to allow a suit for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983),
but it does not confer any substantive rights, United States v. Testan, 424 U.S. 392, 398
(197 6). Therefore, a plaintiff seeking to invoke the court's Tucker Act jurisdiction must



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identify an independent source of a substantive right to money damages from the United
States arising out of a contract, statute, regulation, or constitutional provision. Jan's
Helicopter Serv., Inc. v. Fed. Aviation Adrnin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).

         In addition, concunent with the district courts, the Court of Federal Claims has
jurisdiction over suits for the refund of taxes that allegedly have been erroneously or
unlawfully assessed or collected. 28 U.S.C. § 1346(a)(l); see also United States v.
Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008). "[B]efore doing so, the taxpayer
must comply with the tax refund scheme established in the [Internal Revenue] Code,"
Clintwood Elkhorn Mining Co., 553 U.S. at 4. Further, the relief available in such a
lawsuit is carefully circumscribed. Thus, the court lacks the ability to order any restraints
on the IRS's assessment or collection of any tax, as such an order would violate the Anti-
Injunction Act, IRC § 7421(a). See Ledford v. United States, 297 F.3d 1378, 1381 (Fed.
Cir. 2002). Likewise, a plaintiff in this court may not maintain a claim for tax-collection-
related damages. Id.; see also IRC § 7433(a) (stating that such a case must be filed "in a
district court of the United States"). Finally, under 28 U.S.C. § 2201, the Court of Federal
Claims "has no jurisdiction to grant a declaratory judgment with regard to Federal taxes."
Sweeney v. United States, 285 F.2d 444, 447 (Ct. CL 1961); see also Home v. United
States, 519 F.2d 51, 52 (5th Cir. 1975) ("It is ... well settled that a declaratory judgment
carmot be issued in a tax case.").

       The Rules of the Court of Federal Claims (RCFC) also contain specific provisions
applicable to tax refund suits. In particular, RCFC 9(m) provides that:

          In pleading a claim for a tax refund, a patty must include:
            (1) a copy of the claim for refund, and
           (2) a statement identifying:
              (A) the tax year(s) for which a refund is sought;
              (B) the amount, date, and place of each payment to be refunded;
              (C) the date and place the return was filed, if any;
              (D) the name, address, and identification number (under seal) of
                   the taxpayer(s) appearing on the return;
              (E) the date and place the claim for refund was filed; and
              (F) the identification number (under seal) of each plaintiff, if
                   different from the identification number of the taxpayer.

II.    Application of Standards

        The Court agrees with the government that it lacks jurisdiction over several of the
claims Mr. Huelbig asserts. First, as mentioned, suits for damages under IRC § 7433 must
be filed in the district courts, not the Court of Federal Claims. To the extent Mr.
Huelbig's damages claims are grounded in§ 7433, the Court therefore lacks jurisdiction
overthem. 1



1 To the extent that Mr. Huelbig's damages claims are based not on the IRS's collection
efforts, but rather on some other unspecified conduct on its pati, such claims would sound


                                             3
        Further, it is well-established that the Anti-Injuuction Act bars suits seeking the
abatement of taxes because such actions amount to challenges to the IRS' s tax
assessments. See Fostvedt v. United States, 978 F.2d 1201, 1202-03 (10th Cir. 1992),
cert. denied, S07 U.S. 988 (1993); Latch v. United States, 842 F.2d 1031, 1033 (9th Cir.
1988) (per curiam); Compton v. United States, 334 F.2d 212, 214-lS & n.S (4th Cir.
1964); see also Cherbanaeffv. United States, 77 Fed. CL 490, SOS (2007) (court lacked
jurisdiction over complaint that was "essentially an attempt to prevent the collection of
assessed taxes by challenging the underlying tax assessments" (quoting Lonsdale v.
United States, 919 F.2d 1440, 1442 (10th Cir. 1990)), afrd, 300 F. App'x 933 (Fed. Cir.
2008). The Court therefore has no jurisdiction over Mr. Huelbig's claim for an
abatement.

       In addition, as noted above, the Court of Federal Claims may not grant a
declaratory judgment in a tax refund case. See 28 U.S.C. § 2201; Sweeney, 28S F.2d at
447. Accordingly, the Court lacks jurisdiction over Mr. Huelbig's claim for a declaratory
judgment.

        In short, the Court lacks jurisdiction over Mr. Heulbig's claim for damages and
his request for an abatement. It also has no power to grant the declaratory relief he seeks.
Accordingly, the government's motion to paiiially dismiss those claims is GRANTED.

         In addition, the Court GRANTS the government's motion for a more definite
statement. As set forth above, the court's rules require plaintiffs in tax refund cases to
include with their pleadings a copy of their claim for a refund and an identifying
statement including specific inf01mation demonstrating that the taxpayer has complied
with the administrative refund scheme. See RCFC 9(m). Mr. Huelbig's complaint does
not include this information, and pro se plaintiffs are not exempt from these filing
requirements. 2 See Artuso v. United States, 80 Fed. CL 336, 338-39 (2008). Further, the
Court has also determined that Mr. Huelbig does not lack the resources to pay the court's
filing file. Mr. Huelbig's motion to proceed in forma pauperis is therefore DENIED.

                                     CONCLUSION

       The government's motion to partially dismiss the complaint is GRANTED. Mr.
Huelbig' s claims for damages, an abatement, and a declaratory judgment are therefore
DISMISSED without prejudice. Further, the government's motion for a more definite
statement is GRANTED, and Mr. Huelbig's motion to proceed in forma pauperis is
DENIED. Mr. Huelbig shall therefore pay the court's filing fee and file an amended


in tort. Such claims, however, are expressly excluded from the Court of Federal Claims'
Tucker Act jurisdiction. 28 U.S.C. § 1491(a)(l); see also Keene Corp. v. United States,
S08 U.S. 200, 214 (1993).
2 Indeed, while Mr. Huelbig appears to request a refund based on his 2009 tax return, he
also asserts that the September 16, 2013 letter from the IRS related to the 2011 tax year.
See Comp!. ifif 10-11, 13, 19.



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complaint that comports with RCFC 9(m) by November 10, 2017. In accordance with
RCFC 9(m), any identifying information contained in Mr. Huelbig's amended pleading
shall be filed under seal.

       IT IS SO ORDERED.




                                                 ELAINE D. KAPLAN
                                                 Judge




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