                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 9 1999
                                 TENTH CIRCUIT
                            __________________________                  PATRICK FISHER
                                                                                 Clerk

 EVA L. MOODY,

          Plaintiff-Appellant,

 v.                                                        No. 98-5254
                                                           (N.D. Okla.)
 UNITED STATES OF AMERICA;                           (D.Ct. No. 97-CV-79-K)
 INTERNAL REVENUE SERVICE,

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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          This order and judgment is not binding precedent except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Appellant Eva L. Moody appeals the district court’s summary judgment

decision dismissing her complaint for failure to demonstrate a genuine issue of

material fact. We exercise jurisdiction under 28 U.S.C. § 1291 and vacate and

remand.



      Ms. Moody filed a complaint requesting various types of tax relief. The

district court granted the government’s motion to dismiss all counts of the

complaint, except one claim for a tax refund. Thereafter, the government sought

a motion for summary judgment to dismiss Ms. Moody’s remaining tax refund

claim. Apart from issues concerning the merits of the claim, the government also

alleged Ms. Moody failed to exhaust her administrative remedies by not seeking a

refund with the Internal Revenue Service prior to seeking relief in the court. In

support of its motion, the government claimed it searched its records at the

Internal Revenue Service’s Special Procedures Branch for its Arkansas-Oklahoma

district and found no indication Ms. Moody filed any claim for a refund.



      In response to the government’s motion, Ms. Moody asserted she completed

five refund forms and mailed them to the Internal Revenue Service in Memphis,

Tennessee. However, Ms. Moody admitted the refund claim she filed in support

of her complaint contained no file stamp indicating the Internal Revenue Service


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received it, and she received no response to her five refund requests.



      The district court granted summary judgment to the government, finding

Ms. Moody failed to demonstrate a genuine issue of material fact existed as to

whether she filed a request for a refund with the Internal Revenue Service.

Specifically, the district court found Ms. Moody failed to carry her burden under

the summary judgment standard because she provided no documents indicating

she actually mailed or filed refund requests. The district court made no explicit

holding concerning Ms. Moody’s failure to exhaust her administrative remedies or

its jurisdiction over her claim.



      Thereafter, Ms. Moody filed a motion to alter or amend the judgment,

asserting she filed a refund request with the Internal Revenue Service, and

attaching a “receipt for certified mail” showing receipt by the Internal Revenue

Service of a document on November 3, 1997. The district court denied Ms.

Moody’s motion holding she did not present any new evidence or verification of

her alleged refund claim sufficient to overcome the summary judgment decision.



      On appeal, Ms. Moody suggests she resolved the jurisdictional issue by

submitting proof, in the form of the “receipt for certified mail,” which shows the


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Internal Revenue Service received her claim for a refund. In addition, she

contends the district court erred in granting the government’s summary judgment

motion without an evidentiary hearing, and in not granting her motion to amend

or alter judgment.



      In turn, the government renews its argument Ms. Moody did not exhaust her

administrative remedies with the Internal Revenue Service prior to seeking a

remedy in the courts. As a procedural matter, the government also explains it

mistakenly premised its jurisdictional argument before the district court “as one

for summary judgment, instead of one for dismissal under Rule 12(b)(1) of the

Federal Rules of Civil Procedure.” It points out the distinction is important

because a summary judgment dismissal is “with prejudice,” while a dismissal

based on Rule 12(b)(1) is “without prejudice,” thereby allowing Ms. Moody to

file a suit if she eventually meets the jurisdictional prerequisites.




      As a preliminary matter, we must consider the procedural posture of this

case. We acknowledge the government’s request to convert the district court’s

decision to dismissal under Rule 12(b)(1). We agree dismissals under summary

judgment are “with prejudice” and may preclude any subsequent action in the


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district court. Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.), cert.

denied, 484 U.S. 986 (1987). Moreover, it is well established summary judgment

is an inappropriate vehicle for raising a question concerning the subject matter

jurisdiction of the court. See Thompson v. United States, 291 F.2d 67, 68 (10th

Cir. 1961); 10A Charles Alan Wright, et al., Federal Practice and Procedure

§ 2713, at 235 (3d ed. 1998). For these reasons, we agree the district court should

have determined whether it had subject matter jurisdiction in this case under Rule

12(b)(1) prior to considering a motion for summary judgment. We review de

novo decisions to dismiss under Rule 12(b)(1). See SK Finance SA v. La Plata

County, 126 F.3d 1272, 1275 (10th Cir. 1997).



      Keeping this in mind, we must next decide whether Ms. Moody met the

jurisdictional requirement for filing her tax refund claim. The Internal Revenue

Code provides no refund suit shall be maintained in federal court until a refund

claim or request is filed with the Internal Revenue Service. See True v. United

States, 190 F.3d 1165, 1171 (10th Cir. 1999) (relying on 26 U.S.C. § 7422(a)).

Under this rule, if Ms. Moody does not adequately raise an issue at the

administrative level, the courts possess no jurisdiction to consider the issue of a

tax refund. Id. In meeting this prerequisite, Ms. Moody bears the burden of

showing she filed her refund claim with the Internal Revenue Service. Id. Ms.


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Moody establishes a presumption of filing if she shows she sent a refund request

by certified or registered mail and presents a post office stamped receipt

demonstrating that fact. See 26 C.F.R. § 301.7502-1(c)(2).



       In this case, the district court correctly determined Ms. Moody initially

provided no documents indicating she actually mailed or filed refund requests

with the Internal Revenue Service. However, a careful review of the record

establishes she later submitted, in her motion to amend or alter, a “receipt for

certified mail” evidencing the Internal Revenue Service’s receipt of a document

on November 3, 1997. Nevertheless, even if this newly admitted document

presumptively establishes she sent a refund request directly to the Internal

Revenue Service, it is insufficient to overcome Ms. Moody’s jurisdictional hurdle

because she filed it well after she filed her district court complaint on January 27,

1997. Therefore, the district court lacked jurisdiction to consider her complaint

as she did not adequately raise a claim at the administrative level prior to filing

suit. 1 Because the pleadings make it apparent the district court lacked



       1
          As it appears Ms. Moody filed a refund claim on or about November 3, 1997, we
leave to the Internal Revenue Service the timely processing of her claim so she may
proceed with a suit in the district court in the event her request is denied. Similarly, it
appears her husband, George Moody, attempted to renew the same or similar refund claim
in August 1998, which we leave to the Internal Revenue Service for appropriate
processing.

                                            -6-
jurisdiction, the district court did not err in failing to conduct a hearing or

denying her motion to amend or alter her complaint. Cf. Duplan v. Harper, 188

F.3d 1195, 1199 (10th Cir. 1999) (holding exhaustion requirement, under the

Federal Tort Claims Act, cannot be cured in an amended complaint as it “would

render the exhaustion requirement meaningless and impose an unnecessary burden

on the judicial system”).



      While we are in accord with the district court’s result, we nevertheless

believe an order of dismissal “without prejudice” due to lack of jurisdiction is

necessary in this case, rather than a summary judgment decision. See Thompson,

291 F.2d at 68; see also Goff v. Hackett Stone Co., 185 F.3d 874, 1999 WL

397409 at *2 (10th Cir. Jun. 17, 1999) (unpublished opinion). Accordingly, the

judgment of the district court is VACATED and the case REMANDED to the

district court for entry of an order dismissing the case without prejudice.



                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge




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