Bastable v. Internal Revenue Service

159 F. App'x 299

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.

Jill Howell Bastable, pro se, appeals from a judgment of the district court, granting the defendants’ motion to dismiss the action for lack of subject matter jurisdiction. On appeal from a dismissal for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, we review the district court’s factual findings for clear error and its legal conclusions de novo. See Luckett v. Bure, 290 F.3d 493, 496 (2d Cir.2002).

For substantially the reasons set forth by the district court, we conclude that the government is immune from suit under the doctrine of sovereign immunity. See Comm’r. v. Lundy, 516 U.S. 235, 240, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996). Although Bastable asserts that she has new evidence that would prove that her amended tax return was timely mailed, no such evidence is proffered, and, even if it were, this Court would not consider such evidence raised for the first time on appeal. See Amalgamated Clothing and Textile Workers Union v. Wal-Mart Stores, Inc., 54 F.3d 69, 73 (2d Cir.1995).

For the foregoing reasons, the district court’s judgment is hereby AFFIRMED.