Caution: the decision discussion immediately below has been reversed; the revised decision is discussed toward the end of this blog.
In Clark v. United States, 2014 U.S. Claims LEXIS 3 (Fed. Cl. 2014), here, the Court of Federal Claims, Chief Judge Campbell-Smith, found that the pro-se complaint the taxpayer filed failed to meet the Flora requirement for full payment but, since the complaint had been filed during the 90 days that the plaintiff could have petitioned the Tax Court, the case was ordered transferred to the Tax Court.
In Clark v. United States, 2014 U.S. Claims LEXIS 3 (Fed. Cl. 2014), here, the Court of Federal Claims, Chief Judge Campbell-Smith, found that the pro-se complaint the taxpayer filed failed to meet the Flora requirement for full payment but, since the complaint had been filed during the 90 days that the plaintiff could have petitioned the Tax Court, the case was ordered transferred to the Tax Court.
I had never seen this disposition before and just thought I would call it to readers' attention in case they ever needed it for their bag of tricks.
Plaintiff has not alleged that she has paid the tax at issue in her tax refund suit. This court does not have jurisdiction to entertain her claim unless the tax has been paid in full. See Flora, 357 U.S. at 75. Plaintiff recognizes that her claim should have been brought before the Tax Court.
The court next considers whether the claim merits transfer. Plaintiff attached to the complaint the Notice of Deficiency letter from the [*5] IRS, which contained instructions to file a petition with the Tax Court if plaintiff wished to contest the IRS determination before making any payment. See Notice of Deficiency Letter 1. Plaintiff's deadline to petition the tax court was November 4, 2013. See id. Plaintiff filed suit in this court on October 29, 2013. See generally Compl. According to plaintiff's letter from the IRS, plaintiff's attempt to protest the Notice of Deficiency would have been brought properly in the Tax Court on the date she filed here. The court therefore determines that the transfer of plaintiff's complaint to the United States Tax Court is "in the interest of justice." 28 U.S.C. § 1631.
III. Conclusion
For the foregoing reasons, the court finds that it lacks jurisdiction over plaintiff's claim. Plaintiff's motion to transfer is GRANTED. Pursuant to 28 U.S.C. § 1631, the complaint is TRANSFERRED to the United States Tax Court.The authority cited, 28 USC, 1631 is here. It short, so I cut and paste it:
28 U.S. CODE § 1631 - TRANSFER TO CURE WANT OF JURISDICTIONCAUTION:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
