                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                              August 28, 2020
                         _________________________________
                                                                             Christopher M. Wolpert
                                                                                 Clerk of Court
 HOWARD D. TRAVIS,

       Plaintiff - Appellant,
                                                               No. 20-1126
 v.                                                   (D.C. No. 1:19-CV-01214-RBJ)
                                                              (D. Colorado)
 UNITED STATES OF AMERICA,

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
                   _________________________________


       Howard D. Travis, proceeding pro se,1 filed a lawsuit against the United States

arguing he is not subject to the tax laws. The district court dismissed Mr. Travis’s

complaint for failure to state a claim. We affirm because the district court lacked

subject matter jurisdiction.



       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
       1
        Because Mr. Travis is proceeding pro se, “we liberally construe his filings, but
we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                  I.   BACKGROUND

      On April 25, 2019, Mr. Travis filed a complaint for declaratory relief against

the United States in the District of Colorado. The complaint is confusing, but the

centerpiece of Mr. Travis’s grievance appears to be that various IRS statutory powers

have never been enacted into “positive law.” ROA at 13 (emphasis omitted). The

upshot is that Mr. Travis claims he was never a “taxpayer” or “person” for purposes

of federal tax law. ROA at 15. Consequently, he was never under any obligation to

file a Form 1040.

      The complaint requests a declaration that all income tax provisions of the

Internal Revenue Code are invalid under numerous constitutional guarantees.

Moreover, the complaint requests that the IRS and Mr. Travis’s past employers be

held liable for larceny, presumably for their roles in collecting taxes from his

paycheck(s).

      The United States moved to dismiss for lack of subject matter jurisdiction, for

failure to state a claim, and for lack of proper service. Mr. Travis responded that the

district court lacked jurisdiction to consider the motion to dismiss because “[a] court

has no jurisdiction to determine its own jurisdiction.” ROA at 60 (purporting to quote

Rescue Army v. Mun. Ct. of City of L.A., 331 U.S. 549 (1947), although the quoted

language does not appear in that opinion).

      Initially, the district court denied the motion to dismiss for failure to comply

with the district court’s practice standards. In response, the United States filed an

amended motion to dismiss, substantively identical to its first motion.

                                               2
       On March 5, 2020, the district court granted the amended motion to dismiss

and dismissed Mr. Travis’s complaint with prejudice. The district court summarized

Mr. Travis’s complaint as “a polemic expressing certain views . . . about the United

States, citizenship, and the taxation system” consistent with arguments typically

advanced by “sovereign citizens.” ROA at 87. The district court found it

“questionable” whether it had subject matter jurisdiction, but ultimately determined

that the complaint failed to state a claim. ROA at 88.

       The clerk entered a final judgment in favor of the United States that dismissed

Mr. Travis’s complaint without prejudice. Mr. Travis timely filed a notice of appeal.

                                   II.   DISCUSSION

       We affirm because the district court lacked subject matter jurisdiction. We

consequently do not reach the merits. “[T]he standard of review is de novo whether

we treat the appeal as seeking review of a Rule 12(b)(1) or 12(b)(6) dismissal.” Colo.

Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).

       The only conceivable basis for subject matter jurisdiction over Mr. Travis’s

complaint requires us to liberally construe his complaint as a request for a tax

refund.2 Yet, even liberally construed, Mr. Travis’s complaint fails to establish



       2
          We lack subject matter jurisdiction over Mr. Travis’s request for a declaration
that all income tax provisions of the Internal Revenue Code are invalid under numerous
constitutional guarantees because the Declaratory Judgment Act “prohibits a court from
declaring the rights of litigating parties with respect to federal taxes.” Wyoming Trucking
Ass’n, Inc. v. Bentsen, 82 F.3d 930, 932–33 (10th Cir. 1996) (interpreting 28 U.S.C.
§ 2201(a)).

                                                3
subject matter jurisdiction. See Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878

(10th Cir. 2017) (“The burden of establishing a federal court’s subject matter

jurisdiction rests upon the party asserting jurisdiction.” (internal quotation marks

omitted)).

      Congress has waived sovereign immunity over tax refund suits in 28 U.S.C.

§ 1346(a)(1). That statute provides the district courts with jurisdiction 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 penalty claimed to have been collected without authority
      or any sum alleged to have been excessive or in any manner wrongfully
      collected under the internal-revenue laws[.]

Id.

      This waiver is not unlimited, however. Before filing suit, “the taxpayer must

comply with the tax refund scheme established in the Code.” United States v.

Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008). “That scheme provides that a

claim for a refund must be filed with the [IRS] before suit can be brought, and

establishes strict timeframes for filing such a claim.” Id.

      Mr. Travis’s complaint does not allege any of these jurisdictional

prerequisites. In fact, the complaint does not reference any specific payment or tax

year, let alone an administrative claim. And on appeal, Mr. Travis seems to agree that

we lack jurisdiction, arguing that “[t]his [c]ase should be dismissed for [l]ack of

[j]urisdiction upon the grounds that neither statutory Notice of Deficiency nor any/all

documents requested was received from the IRS.” Appellant Br. at 2.



                                                4
      “Generally, a dismissal for lack of subject matter jurisdiction is without

prejudice and does not have a preclusive effect.” Garman v. Campbell Cnty. Sch.

Dist. No. 1, 630 F.3d 977, 985 (10th Cir. 2010). The district court stated that it was

dismissing the complaint with prejudice, but the clerk entered a judgment dismissing

the complaint without prejudice. Because the judgment is consistent with our

determination that the district court lacked subject matter jurisdiction, we need not

remand for entry of amended judgment.

      For these reasons, we affirm.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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