Cobai v. United States of America, Department of the Treasury, Internal Revenue Service

• Court: District Court, N.D. California
• Decided: May 29, 2024
• Docket: 3:23-cv-01631
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GREGORY COBAI, Case No. 23-cv-01631-JD

8 Plaintiff, SECOND ORDER RE DISMISSAL v. 9

10 UNITED STATES OF AMERICA, DEPARTMENT OF THE TREASURY, 11 INTERNAL REVENUE SERVICE, Defendant. 12 13 The Court dismissed the original complaint filed by pro se plaintiff Gregory Cobai for lack 14 of subject matter jurisdiction “because Cobai did not adequately demonstrate that he filed a proper 15 administrative claim with the IRS prior to filing suit.” Dkt. No. 15 at 1 (citing 26 U.S.C. 16 § 7422(a)). The ostensible refund claims did not adequately apprise the IRS of the basis for 17 Cobai’s objection to the tax assessments, and they were not verified by a declaration made under 18 penalty of perjury. See Boyd v. United States, 762 F.2d 1369, 1371 (9th Cir. 1985); 26 C.F.R. 19 § 301.6402-2(b)(1). The collections-related claim was dismissed because the complaint did not 20 allege a statutory basis for relief, or that Cobai met the requirements to bring a damages claim 21 pursuant to 26 U.S.C. § 7433. See Dkt. No. 15 at 2. 22 Dismissal was with leave to amend, and Cobai filed an amended complaint. Dkt. No. 16 23 (FAC). The FAC is virtually identical in substance to the dismissed complaint. Cobai re-alleges 24 that the IRS lacks “evidence or facts to prove and/or support their claims that Plaintiff has an 25 obligation to pay money to the IRS because it has jurisdiction over Plaintiff pursuant to the 26 Internal Revenue Code (IRC).” Id. ¶ 3. Defendants ask to dismiss the FAC pursuant to Federal 27 Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 21. 1 The FAC did not materially improve the shortfalls of the prior complaint. The ostensible 2 || refund claim attached to the FAC does not “specifically mention[]” any factual or legal basis to 3 contest Cobai’s tax liability. Synergy Staffing, Inc. v. U.S. LR.S., 323 F.3d 1157, 1161 (9th Cir. 4 || 2003). It questions the IRS’s authority to tax Cobai but says nothing beyond that. See Dkt. 5 || No. 16, Exh. A at ECF p. 19 (IRS has no “evidence or facts to prove and/or support their claims 6 || the Internal Revenue Code (IRC) applies to me, the laws apply to me, IRS has jurisdiction over 7 me, and that I have an obligation to IRS to pay money.”). This does not establish grounds on 8 || which to sue the IRS. See 26 C.F.R. § 301.6402-2(b). 9 For Count II, which seeks a refund of garnished wages, Cobai again invokes the refund 10 || statute. Dkt. No. 22 at 6. But the only monetary remedy for improper collections activity is 11 provided by Section 7433. See 26 U.S.C. § 7433(a) (“Except as provided in section 7432, such 12 || civil action shall be the exclusive remedy for recovering damages resulting from such actions.”). 5 13 That section has its own exhaustion and timing requirements, which were cited in the prior order, 14 || and with which Cobai has not demonstrated compliance. See Dkt. No. 15 at 2 (citing 26 C.F.R. 3 15 §§ 301.7433-1(e), (g)). The FAC alleges improper collection activity in 2018. See Dkt. No. 16 a 16 || {§| 63-66. The complaint, Dkt. No. 1, was not filed until April 5, 2023, well-after the 2-year 3 17 statute of limitations had expired. See 26 U.S.C. § 7433(d)(3); see also Cornejo v. United States, 18 585 Fed. App’x 373 (9th Cir. 2014) (unpublished). 19 Cobai has been given multiple opportunities to establish the Court’s jurisdiction and 20 || plausibly allege a claim. He has come up short. The Court has reviewed the pleadings with the 21 generous reading afforded a pro se litigant. Further amendment is not warranted, and the 22 || complaint is dismissed with prejudice. 23 IT IS SO ORDERED. 24 || Dated: May 29, 2024 25 JAMES JPONATO 26 United Ptates District Judge 27 28