MEMORANDUM OPINION AND FINAL ORDER
I. BACKGROUND.
In 1898, Cоngress imposed the first tax on telephone service. See OfficeMax, Inc. v. United States,
Section 4251 of Title 26 of the United States Code authorizes the Internal Revenue Service (“IRS”) to collect taxes on toll telephone service:
(a) Tax imposed
(1) There is hereby imposed on amounts paid for communications services a tax equal to the applicable percentage of amounts so paid.
(2) Payment of tax. The tax imposed in this section shall be paid by the person paying for such services.
(b) Definitions. For the purposes of subsection (a)—
(1) Communications services. The term “communications services” means—
(A) local telephone service;
(B) toll telephone service; and
(C) teletypewriter exchange service.
(2) Applicable percentage. The term “applicable percentage” means 3 percent.
26 U.S.C. § 4251 (emphasis added).
Congress defined “toll telephone service” as:
(1) A telephonic quality communication for which (A) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication and (B) the charge is paid within the United States----
26 U.S.C. § 4252(b) (emphasis added).
When Congress enacted section 4252 in 1965, American Telephone and Telegraph Company (“AT & T”), the only provider of long distance telephone service, charged a toll on long distance calls based on both time and distance. See OfficeMax,
In recent years, a number of corporations have successfully argued that the IRS does not have authority under 26 U.S.C. § 4251 to collect taxes on toll telephone service billed solely on the basis of time, instead of elapsed time and distance. See, e.g., Reese Bros., Inc. v. United States,
On October 20, 2005, in response to the United States Court of Appeals for the Eleventh Circuit’s decision in American Bankers, the IRS released a Notice announcing that:
The government did not seek review by the United States Supreme Court in American Bankers Insurance Group. Nevertheless, the government will continue to litigate this important issue. The government is prosecuting appeals in five different circuits.
This notice confirms that the Service will continue to assess and collect the tax under [26 U.S.C.] § 4252 on all taxable communications services, including communications services similar to those at issue in the cases. Collectors should continue to collect the tax, including from taxpayers*390 within the jurisdiction of the United States Court of Appeals for the Eleventh Circuit.
Taxpayers may preserve any claims for overpayments by filing administrative claims for refund with the Servicе pursuant to [26 U.S.C.] § 6511. Taxpayers are advised, however, that these claims, including claims for which appellate venue would lie in the United States Court of Appeals for the Eleventh Circuit, will not be processed while there are pending cases in other United States Courts of Appeals.
Internal Revenue Service Notice 2005-79,
II. RELEVANT FACTS AND PROCEDURAL HISTORY.
During the past six years, Plaintiff has paid the excise tax collected on long distance toll telephone service, pursuant to 26 U.S.C. § 4251. See Compl. ¶¶ 15, 16. Plaintiff, however, has not filed a claim for a refund of this tax from thе IRS. Id. ¶ 102. Nevertheless, on December 19, 2005, Plaintiff filed a Complaint, on behalf of herself and of a putative class, in the United States Court of Federal Claims seeking a refund. The Complaint challenges both the IRS’s authority to tax toll telephone service billed solely on the basis of time and the IRS’s decision to continue collecting this excise tax despite the decision in American Bankers. See Compl. ¶11
The Complaint alleges four claims against the United States (“the Government”). Id. ¶¶ 80-103. Claim I alleges that the excise tax at issue was аn unlawful taking under the Fifth Amendment to the United States Constitution. Id. ¶¶ 81-82. Claim II alleges that the tax violates Article I, Section 8, of the United States Constitution. Id. ¶ 90. Claim III alleges that the IRS’s collection of the excise tax was an illegal exaction. Id. ¶ 94. Claim III also alleges that the IRS breached an implied contract with Plaintiff. Id. ¶¶ 94-95. Claim IV does not actually allege a cause of action, but it asserts that the IRS’s prospective refusal to process refund claims, while appellate litigation is pending, is tantamоunt to a waiver of the jurisdictional requirement that taxpayers must file for a refund with the IRS prior to filing suit in the United States Court of Federal Claims. Id. ¶¶ 100-01.
On February 17, 2006, the Government filed a Motion to Dismiss Claims I, II, and III, pursuant to RCFC 12(b)(6), and Claim IV, pursuant to RCFC 12(b)(1). See Gov’t Mot. Dis.
On May 26, 2006, the IRS released Notice 2006-50, which stated that the definition in 26 U.S.C. § 4252 does not include communications services for which a toll is charged based only on elapsed time, and not distance. See Internal Revenue Service Notice 2006-50,
III. DISCUSSION.
A. Jurisdiction.
The United States Court of Federal Claims has “jurisdiction 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 eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan,
Before the United States Court of Federal Claims can exercise jurisdiction over a tax refund claim, howevеr, the plaintiff must first file a tax refund claim with the IRS:
No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according tо the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.
26 U.S.C. § 7422(a) (emphasis added).
B. Standard Of Review.
The court’s consideration of motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim is “necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes,
C. The Court’s Resolution Of The Government’s Motion to Dismiss.
1. The United States Court Of Federal Claims Does Not Have Jurisdiction To Adjudicate Plaintiffs Illegal Exaction Claim.
a. The Government’s Argument.
The Government argues that the court does not have subject matter jurisdiction, because Plaintiff has not filed a claim for a refund with the IRS as required by section 7422(a) of Titlе 26 of the United States Code. See Gov’t Reply at 7. Additionally, the Government argues that the IRS does not have the power to waive the jurisdictional requirements of section 7422(a). See Gov’t Mot. Dis. at 7. Moreover, the Government argues that even if the IRS could waive the requirements of section 7422(a), it has not done so. Id. at 7 (“Notice [2006-50] does not contain any waiver. The Notice expressly provides that taxpayers who want to contest the IRS position, and recover a refund of [26 U.S.C.] § 4251 excise tax paid, ‘should file a claim for refund.’ ”).
b. Plaintiffs Response.
Plaintiff responds that section 7422(a) does not prevent the court from exercising jurisdiction over the illegal exaction claim, because the IRS waived the requirement that plaintiff file a claim for a refund by refusing to process refund claims based on section 4251. See PI. Resp. at 36 (“Courts have recognized a futility exception where an agency like the IRS has announced, and followed, a policy of judicial non-acquiescence.”).
In addition, Plaintiff argues thаt section 7422(a) does not apply either to the Takings Clause claim or the Uniformity Clause claim, because they are causes of action that can be pursued “independent of the tax refund statute.” See Pl. Resp. at 27-29 (citing Cyprus Amax Coal Co. v. United States,
c. The Court’s Resolution.
i. 26 U.S.C. § 7422(a) Precludes The United States Court Of Federal Claims From Exercising Jurisdiction Over Plaintiffs Illegal Exaction Claim.
The United States Court of Federal Claims has jurisdiction over tax refund claims where an internal revenue tax is alleged to have been erroneously collected. See 28 U.S.C. § 1491(a)(1). Section 7422(а) of Title 26 of the United States Code, however, requires that a plaintiff seeking a tax refund in the United States Court of Federal Claims first file a claim for a refund with the IRS before the court has jurisdiction under 28 U.S.C. § 1491(a)(1). See 26 U.S.C. § 7422(a). Plaintiff failed to file such a refund claim with the IRS.
Contrary to Plaintiffs argument, this jurisdictional requirement cannot be waived by either the IRS or the court. See Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee,
ii. 26 U.S.C. § 7422(a) Does Not Preclude The United States Court of Federal Claims From Exercising Jurisdiction Over Plaintiffs Takings Claim, Uniformity Clause Claim, Or Contract Claim.
Section 7422(a), however, does not preclude the United States Court of Federal Claims from exercising jurisdiction over a cause of action that is independent and self-executing, regardless of whether the plaintiff filed a refund with the IRS before initiating suit. See Cyprus Amax,
Section 7422(a) does not preclude jurisdiction over Plaintiffs takings claim, because the Takings Clause of the United States Constitution is money-mandating in its own right and, therefore, provides an independent and self-executing cause of actiоn. See Elkins v. United States,
2. The United States Court Of Federal Claims Does Not Have Jurisdiction To Adjudicate Plaintiff’s Fifth Amendment Takings Claim.
a. The Government’s Argument.
The Government argues that the court does not have jurisdiction over Plaintiffs takings claim, because Plaintiff has not conceded that the IRS was authorized to collect the tax. See Gov’t Mot. Dis. at 3 (“Since the complaint alleges that the IRS’[s] collection of the tax was not valid, it fails to set forth a cause of action based on a Fifth Amendment Taking.”). The Government asserts that Plaintiffs takings claim is actually a Due Process Clause claim, over which the court does not have jurisdiction because the Due Process Clause is not money-mandating. See Gov’t Reply at 3 (“[T]he language quoted in plaintiffs opposition only refers to a violation of due process, not a taking.”).
b. Plaintiffs Response.
Plaintiff responds thаt the excise tax “will constitute a taking if ‘the act complained of was so arbitrary as to constrain to the conclusion that it was not the exertion of taxation but a confiscation of property, that is, a taking of the same in violation of the Fifth Amendment, or what is equivalent thereto, was so wanting in basis for classification as to produce such a gross and patent inequality as to inevitably lead to the same conclusion.’ ” PI. Resp., 16 (quoting Brushaber v. Union Pac. RR,
c. The Court’s Resolution.
The United States Court of Federal Claims has jurisdiction over claims alleged under the Fifth Amendment Takings Clause. See Murray v. United States,
It is well established that the collection of a tax does not constitute a taking within the meaning of the Fifth Amendment. See Cole v. City of LaGrange,
In this ease, Plaintiff has not admitted that the IRS’s collection of excise tax on her toll telephone service was authorized. See Compl. ¶¶ 6, 35, 95. Therefore, Plaintiff has failed to invoke the court’s jurisdiction over the takings claim. See Rith,
The court, therefore, does not have jurisdiction over Plaintiffs Takings Clause claim.
3. The United States Court Of Federal Claims Does Not Have Jurisdiction To Adjudicate Plaintiffs Uniformity Clause Claim.
a. The Government’s Argument.
The Government argues that Plaintiffs Uniformity Clause claim should be dismissed, because the Uniformity Clause applies to the actions of Congress in passing a statute, not to the actions of the IRS in administering a statute. See Gov’t Mot. Dis. at 5.
b. Plaintiffs Response.
Plaintiff responds that the court has jurisdiction over the claim, because “the Uniform Excise Tax Clausе is a money-mandating provision.” PI. Resp. at 29. Plaintiff argues that the Uniformity Clause claim should be treated in same manner that the United States Court of Appeals for the Federal Circuit treated the Export Clause claim in Cyprus Amax,
c. The Court’s Resolution.
To invoke the jurisdiction of the United States Court of Federal Claims, a plaintiff must identify and plead a separate source of substantive law, i.e., a contract, constitutional provision, federаl statute, or regulation, that provides a substantive right to money damages. See Todd,
To detеrmine whether a provision is money-mandating, “the court should entertain and decide the jurisdictional and merits test in a single step in which the trial court determines both the question of whether the provision provides the predicate for its jurisdiction, and lays to rest the question of whether the statute on its merits provides a money-mandating remedy.” Wopsock v. Natchees,
In this case, the Complaint alleges that the Uniformity Clause mandates the payment of money for the alleged ultra vires and nonuniform enforcement of 26 U.S.C. § 4251. See Compl. ¶¶ 87-91.
Article I, Section 8, Clause 1 of the United States Constitution provides:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and excises shall be uniform throughout the United States [.]
U.S. Const, art. I, § 8, cl. 1 (emphasis addеd). The Uniformity Clause, therefore, is a limitation on legislative, not executive, action. See United States v. Ptasynski,
No court has resolved the issue of whether the Uniformity Clause is money-mandating. Indeed the Supreme Court’s treatment of the Uniformity Clause has been limited. See Nelson Lund, Comment, The Uniformity Clause, 51 U. Chi. L. Rev. 1193, 1193 (1984) (“The nature and extent of the limitation placed on [Congress’ power to tax] by the [Uniformity [C]lause has only been infrequently considered by the Supreme Court; in no case has the clause been relied upon to invalidate a statute.”). Arguably, the Uniformity Clause is mоney-mandating, because it contains language directly related to a pecuniary interest. See U.S. Const, art. I, § 9, cl. 3. In that respect the Uniformity Clause is like the Export Clause and the Judges’ Compensation Clause, which were held by the United States Court of Appeals for the Federal Circuit to be money-mandating, in part, because they contained such language. See Cyprus Amax,
The issue before the court is not whether the Uniformity Clause mandates the payment of money when Congress, in fact, violates the Uniformity Clause. Rather, the issue before the court is whether the Uniformity Clause, “as alleged and pleaded,” is money-mandating. See Fisher,
The Complaint alleges that the IRS’s ultra vires and nonuniform collection of the tax proscribed in section 4251 violates the Uniformity Clause. See Compl. ¶ 90. The Complaint, however, has not alleged or plead that Congress violated the Uniformity Clause.
4. The Unitеd States Court of Federal Claims Does Not Have Jurisdiction To Adjudicate Plaintiffs Implied Contract Claim In Count Three.
a. The Government’s Argument.
The Government argues that Plaintiffs contract claim must be dismissed, because the Complaint does not allege evidence of the existence of “mutual intent to contradi,] including an offer and acceptance, [and] consideration^]” See Gov’t Mot. Dismiss, 6 (quoting Hunsaker v. United States,
b. Plaintiffs Response.
Plaintiff offers no response to the Government’s argument regarding the need to plead the elements of an implied contract.
c. The Court’s Resolution.
To invoke the jurisdiction of the United States Court of Federal Claims to adjudicate an implied contract claim, the plaintiff must allege facts evidencing: “mutual intent to contract^] including offer and acceptance, consideration, and a Government Representative who has actual authority to bind the Government.” Trauma Service Group v. United States,
IY. CONCLUSION
For the aforementioned reasons, the Government’s Motion to Dismiss is GRANTED, without prejudice. In the event that the jurisdictional requirement of section 7422(a) is met, Plaintiff may refile. Accordingly, Plaintiffs Motion for Summary Judgment and the Government’s Motion to Strike are DENIED, as moot.
IT IS SO ORDERED.
Notes
. An excise tax is an indirect tax on an activity related to property, including a tax on services. See Union Elec. Co. v. United States,
. The relevant facts recited herein were derived from: the December 9, 2005 Complaint ("Compl.”); the Government's February 2, 2006 Motion to Dismiss ("Gov’t Mot. Dis.”); Plaintiff's March 21, 2006 Memorandum Contra Defendant’s Motion to Dismiss and Cross-Motion for Partial Summary Judgment as to Liability (“PI. Resp."); the Government’s April 27, 2006 Reply Brief to Plaintiff’s Opposition of Defendant's Motion to Dismiss ("Gov’t Reply”); the Government’s May 12, 2006 Motion to Strike or in the Alternative for a Stay ("Gov't Mot. Strike”); and the Government’s May 25, 2006 Status Report and Notice of Change of Position ("Gov't Status Rep.”).
. Although the Government’s Motion to Dismiss only moves to Dismiss Claim IV for lack of jurisdiction, the Government argues that the court lacks jurisdiction over all four claims. See Gov't Resp. 14 (“[Tjhis Court clearly lacks jurisdiction to consider the claims raised in the complaint”). Nevertheless, the court considers the Government’s Motion as filed under RCFC 12(b)(1) as to all four of Plaintiff’s claims.
. The Export Clause of the United States Constitution provides: "no Tax or Duty shall be laid on Article exported from any state.” U.S. CONST. art I, § 9, cl. 5.
. The Judges' Compensation Clause of the United States Constitution provides: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const, art. III, § 1.
. In discussing the money-mandating requirement of the Tucker Act, the United States Supreme Court has held that: “This 'fair interpretation' rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity.... It is enough, then, that a statute creating a Tucker Act right be reasonably amendable to the reading that it mandates a right of recovery in damages. While predicate acts to establish a Tucker Act claim will not be ‘lightly inferred’ ... a fair inference will do.” United States v. White Mountain Apache Tribe, 537 U.S.