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Tax Protestor Cases Exhibit
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CITE: Vincent D. Bibbs, et ux. v. United States; 85 AFTR2d Par. 2000-348; No. 99-5117 (January 11, 2000)

NOTE: Pursuant to Fed. Cir., R. 47.6, this disposition is not citable as precedent. It is a public record. The disposition will appear in tables published periodically.

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

VINCENT D. BIBBS,
Plaintiff-Appellant,
and
GAYLE R. BIBBS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.

DECIDED: January 11, 2000

Before Plager, Lourie, and Clevenger, Circuit Judges.

PER CURIAM.

[1] Vincent D. Bibbs and Gayle R. Bibbs (collectively, "the Bibbs") appeal from the dismissal by the United States Court of Federal Claims of their claims against the United States Government. See Bibbs v. United States, No. 98-410T (Order Dated April 26, 1999). Because the Court of Federal Claims correctly determined that it lacked jurisdiction to hear any of the Bibbs' claims, we affirm.

I

[2] Since 1993, the Bibbs have been the subject of ongoing Internal Revenue Service ("IRS") enforcement efforts to collect unpaid federal income taxes for the 1988, 1991, 1992, 1993, and 1994 tax years, including repeated notices of lien and levy against the Bibbs' property. In response to this activity, the Bibbs in 1996 filed repeated Freedom of Information Act ("FOIA") and Privacy Act requests with the IRS, seeking clarification of the IRS actions, and requesting that the IRS amend records to reflect the Bibbs' claim that they are not subject to federal income taxes. The IRS response was deemed unsatisfactory by the Bibbs, and the present lawsuit was filed in the Court of Federal Claims in April 1998.

[3] The Bibbs' complaint, read liberally, states two claims: (1) that the IRS violated the FOIA and Privacy Acts in its creation and maintenance of records showing that the Bibbs were liable for federal income taxes; and (2) that the IRS has violated various aspects of the U.S. Constitution by collecting unpaid federal income taxes. The Bibbs seek a "right to return of property" and a declaratory judgment that they are not subject to federal income taxes.

[4] The Court of Federal Claims, after initially sua sponte dismissing the Bibbs' complaint, reconsidered portions of their claims as raising a claim for a tax refund. See Bibbs v. United States, No. 98-410T (Order Dated Sept. 29, 1998). After the court ordered the Bibbs to specifically state what sums have been paid to the IRS and the basis of their claim for a refund, see Bibbs v. United States, No. 98-410T (Order Dated Oct. 14, 1998), the Bibbs responded in a filing that their case "is not about a refund." Thereafter, the court dismissed the claims for lack of subject matter jurisdiction. See Bibbs v. United States, No. 98-410T (Order Dated April 26, 1999).

[5] This appeal followed, vesting us with jurisdiction pursuant to 28 U.S.C. section 1295(a)(3) (Supp. 1998).

II

[6] We exercise plenary review of a Court of Federal Claims decision to dismiss a complaint for lack of subject matter jurisdiction. See Brown v. United States, 86 F.3d 1554, 1559 (Fed. Cir. 1996). In conducting our review, we must accept the complaint's undisputed factual allegations as true and construe the facts in the light most favorable to the plaintiff. See Bradley v. Chiron Corp., 136 F.3d 1317, 1321-22 (Fed. Cir. 1998) ("The appellate court, like the district court, tests the sufficiency of the complaint as a matter of law, accepting as true all well-pleaded allegations of fact, construed in the light most favorable to the plaintiff.").

[7] Although we consider a plaintiff's complaint in the most favorable light, we must not lose sight of the fact that the Court of Federal Claims, like all federal courts, is a court of limited jurisdiction. Its jurisdiction is generally defined by the Tucker Act, which gives that court authority to

render judgment upon 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.

See 28 U.S.C. section 1491(a)(1) (1994). The Supreme Court has interpreted this language to mean that a plaintiff who seeks redress in the Court of Federal Claims must present a claim for "actual, presently due money damages from the United States." United States v. King, 395 U.S. 1, 3 (1969); see also United States v. Testan, 424 U.S. 392, 400 (1976). Although the Tucker Act provides jurisdiction for damage suits against the United States Government, it is equally
clear that the Tucker Act does not itself create a cause of action against the Government. Rather, a plaintiff seeking recovery against the Government in the Court of Federal Claims must point to a money-mandating constitutional provision, statute, regulation, or contract with the United States affording it a right to money damages. See United States v. Mitchell, 463 U.S. 206 (1983); Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc); United States v. Connolly, 716 F.2d 882, 885 (Fed. Cir. 1983) (en banc).

[8] As we noted above, the Bibbs have alleged several violations against them and their property. /1/ Most of these, however, are not the type of claim that may be adjudicated by the Court of Federal Claims. The Court of Federal Claims does not have jurisdiction over FOIA claims, as that statute is not money- mandating. Similarly, because the Administrative Procedure Act ("APA") provides only injunctive relief, claims under that Act may proceed only in a United States District Court. See James v. Caldera, 159 F.3d 573, 578-79 (Fed. Cir. 1998). Further, the Bibbs' invocation of the constitutional principles of privacy, delegated and reserved powers, and freedom of speech are unavailing, as those portions of the Constitution do not themselves support a claim for money damages. In short, the Court of Federal Claims was correct in dismissing these claims.

III

[9] The Bibbs' complaint, read as broadly as possible, hints at two possible claims that may provide the Court of Federal Claims with jurisdiction. First, the Bibbs argue that they are "Ohio Private Citizens" rather than citizens of the United States, and thus are not eligible to be taxed by the United States government. The Bibbs argue that their rights as "natural" citizens are thus protected by the limited nature of the powers delegated to the federal government, and that the seizing of their property to satisfy federal taxes was a violation of the Constitution. This is simply wrong. To the extent that the Bibbs believe that the United States is without constitutional authorization to tax their income, we need only point to the plain language of the Sixteenth Amendment: "Congress shall have the power to lay and collect taxes on incomes, from whatever source derived . . . ." Further, the law is crystal clear that citizens of the various states are subject to federal income taxes. See, e.g., United States v. Sloan, 939 F.2d 499 (7th Cir. 1991) (citizens of Indiana subject to the tax code); United States v. Price, 798 F.2d 111, 113 (5th Cir. 1986) ("The citizens of Texas are subject to the Federal Tax Code.").

[10] Second, the Bibbs may be attempting to make a claim for a refund of taxes paid to the IRS, a claim that, if perfected, would provide the Court of Federal Claims with jurisdiction. See 28 U.S.C. section 1346(a)(1) (granting the Court of Federal Claims jurisdiction over civil actions for tax refunds). While we have serious doubts that a refund is what the Bibbs seek, see No. 98-410T, Response to the Court's Order Dated Oct. 14, 1999, at 1 ("This Complaint is not about a refund"), the Bibbs' claim would lack jurisdiction even if they were seeking a refund. The right to bring a tax refund action is conditioned on (1) the full payment of the taxes in dispute, see Flora v. United States, 357 U.S. 63 (1958), aff'd on rehearing, 362 U.S. 145 (1960), (2) the filing of a timely claim for refund with the IRS, see 26 U.S.C. section 6511, 7422 (1994), and (3) the filing of a timely complaint subsequent to the submission of the claim for a refund, see 26 U.S.C. section 6532 (1994). We cannot find any evidence in the record that supports that the Bibbs paid the disputed taxes or requested a refund from the IRS. See, e.g., Arch Eng'g Co., Inc. v. United States, 783 F.2d 190, 192 (Fed. Cir. 1986) (minimum requirements for an "informal" refund claim include written request for sums paid for a particular tax year). We further note that, when asked to point to information supporting a refund claim by the Court of Federal Claims, the Bibbs declined to do so.

[11] For these reasons, the Bibbs have failed to state a claim upon which relief can be granted in the Court of Federal Claims. The Court of Federal Claims thus correctly dismissed the complaint for lack of subject matter jurisdiction.

FOOTNOTE

/1/ For the first time on appeal, the Bibbs assert that the Administrative Procedure Act, 5 U.S.C. sections 701-06 (1994), provides the Court of Federal Claims with jurisdiction.

END OF FOOTNOTE

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