Byers v. Intuit, Inc. (564 F. Supp. 2d 385, 2008)

United States District Court for the Eastern District of Pennsylvania 2008-05-28

Internal Revenue Code Money and Finance Postal Service The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM AND ORDER

O’NEILL, District Judge.

Before me are the motions of Defendants Intuit, Inc., the Free File Alliance, LLC, and H & R Block Digital Tax Solutions, LLC to dismiss Plaintiffs’ First Amended Complaint (Documents No. 32, 33, and 34 respectively), Plaintiffs’ responses thereto (Documents No. 45 and 46), and Defendants’ reply briefs (Documents No. 47, 48, and 49). For the following reasons, all three motions will be granted, and Plaintiffs’ First Amended Complaint will dismissed as to all Defendants except the Internal Revenue Service.

I. Background

A. Overview

Plaintiffs in this action are Stacie Byers and Deborah A. Seltzer, both of whom are citizens of Pennsylvania. First Amended Complaint (“FAC”) ¶¶ 6-7. Defendants in this action are Intuit, Inc. (“Intuit”), H & R Block Digital Tax Solutions, LLC (“Block”), the Free File Alliance, LLC (“FFA”), and the Internal Revenue Service (“IRS”). Id. ¶¶ 8-10, 12. Like Plaintiffs, I will refer to Defendants Intuit, Block, and FFA as the “Corporate Defendants.” Id. ¶ 10. According to Plaintiffs, Defendants Intuit and Block have been members of Defendant FFA at all times relevant to this lawsuit. Id. ¶ 11.

Plaintiffs assert two claims on behalf of themselves and the proposed class of taxpayers and tax preparers. First, Plaintiffs claim that all the named Defendants and the members of the defendant class have violated the Independent Offices Appropriations Act (“IOAA”), 31 U.S.C. § 9701, by charging them and the proposed class “illegal fees to electronically file (‘e-file’) their federal tax and information returns with the IRS through the IRS’ electronic tax and information return filing program, known as TRS e-file.’ ” FAC ¶¶ 1-2, 22, 39. Second, Plaintiffs claim that all the named Defendants except the IRS (i.e., the Corporate Defendants) and the defendant class have violated Section 1 of the Sherman Act, 15 U.S.C. § 1, by “illegally agreeing] among themselves that no member of the [FFA] would individually offer free e-filing services to more than fifty percent of taxpayers, and that collectively they would not offer free e-filing services to more than seventy percent of taxpayers.” Id. ¶¶ 3, 23, 40. Plaintiffs further allege that they “purchased and used” Defendants Block and Intuit’s “tax return preparation software and ‘e-filing’ services in the Commonwealth of Pennsylvania to electronically prepare and e-file [their] 2006 income tax return[s] with the IRS through the IRS’s e-file service.” Id. ¶¶ 14-15.

The significance of this lawsuit is underscored by Plaintiffs’ allegations that “hundreds of millions of tax returns have been filed electronically with the IRS through the Corporate Defendants,” id. ¶ 20, and that “the Corporate Defendants have illegally charged and/or overcharged Plaintiffs, taxpayers, and tax preparers hundreds of millions, if not billions of dollars to file such returns.” Id.

B. The Creation of the IRS’s Free File Program

In the Internal Revenue Restructuring and Reform Act of 1998 (“RRA”), Congress set a policy goal of encouraging the electronic filing of federal tax and information returns with Defendant IRS. Specifically, § 2001(a) of the RRA declared that:

(a) In general. — It is the policy of Congress that—

(1) paperless filing should be the preferred and most convenient means of filing Federal tax and information returns;

(2) it should be the goal of the Internal Revenue Service to have at least 80 percent of all such returns filed electronically by the year 2007; and

(3) the Internal Revenue Service should cooperate with and encourage the private sector by encouraging competition to increase electronic filing of such returns.

Pub.L. No. 105-206, Title II, 112 Stat. 723 (1998); accord 26 U.S.C. § 6011(f) (2008). Motivated in part by this policy, Defendant IRS in August 2002 published notice in the Federal Register of its intent to “enter into an agreement (the Agreement) with a consortium of companies in the electronic tax preparation and filing industry (the Consortium) who together desire to work together to offer free, online tax return preparation and filing services to taxpayers (Free Services).” 67 Fed.Reg. 51621 (Aug. 8, 2002). After comments were received, Defendant IRS, in accordance with this notice and with the requirements of the Administrative Procedures Act (“APA”), entered into an agreement on October 30, 2002 with the “Consortium”— ie., Defendant FFA — which is described in the agreement as “a non-profit corporation (under the provisions of 26 U.S.C. § 501(c)(3)) formed under the auspices of, and affiliated with, the Council for Electronic Revenue Communication Advancement.” FAC, Exhibit A, at 1 (2002 Free On-Line Electronic Tax Filing Agreement); see also 67 Fed.Reg. 67247 (Nov. 4, 2002).

The 2002 Agreement between Defendants FFA and the IRS lasted for three years. See FAC, Exhibit A, art. VILA (“This Agreement has an initial term of three years from its effective date with automatic options to renew for successive two year periods.”); see also 67 Fed.Reg. 67247, 67250. On October 30, 2005, Defendants FFA and the IRS renewed this agreement for an additional four years, subject to certain changes and additional conditions. See FAC, Exhibit B (2005 Free On-Line Electronic Tax Filing Agreement Amendment).

C. What the Free File Alliance Does

Although the agreements governing the relationship between Defendants FFA and the IRS are quite detailed, they have been summarized succinctly as follows:

To accomplish the above objectives, the IRS and the [FFA] (together, “the Parties”) will work together to offer free, on-line tax return preparation and filing services to taxpayers (“Free Services”). The [FFA] will offer Free Services to taxpayers. The IRS will provide taxpayers with links to the Free Services offered by the [FFA] Participants through a web page ..., which will be hosted at irs.gov accessible through firstgov.gov. During the term of this Agreement, the IRS will not compete with the FFA in providing free, online tax return preparation and filing services to taxpayers.

This Agreement is the best method for meeting the above stated objectives because it will promote higher quality Free Services by utilizing the existing expertise of the private sector, maximize consumer choice, promote competition for such Free Services, and thereby meet the objectives in the least costly manner.

FAC, Exhibit A, art. II.

Under the 2002 Agreement, Defendant FFA committed to offering free online federal tax return preparation and filing services to at least 60% of taxpayers during the primary tax filing season. Id. at arts. III.A and IV.C. Under the 2005 Agreement, that percentage was increased to and capped at 70%, and Defendants FFA and the IRS further “agree[d] that to serve the greater good and to ensure the long-term stability of the Alliance, the scope of this program is focused on covering the taxpayers least able to afford e-filing their returns on their own.” FAC, Exhibit B, arts. I.B and I.C. Defendants FFA and the IRS therefore agreed that the “IRS will utilize the then current Adjusted Gross Income (AGI) number which equates to 70% of the taxpayers to manage the program.” Id. at art. I.E. As of December 19, 2007, this AGI number was $54,000. See Defendant FFA’s Motion, Exhibit 3 (“Free File is only available to taxpayers who have a 2007 Adjusted Gross Income (AGI) of $54,000 or less.... If your Adjusted Gross Income (AGI) exceeds $54,000, ... you may continue completing your return, but you will be charged a fee for preparation.”) (emphasis in original).

Interestingly, the 2002 Agreement required each FFA member to offer free online federal tax return preparation and filing services to 10% of taxpayers, but did not set an upper limit on the percentage of taxpayers who could be offered free services. See FAC, Exhibit A, art. III.B.2. The 2005 Agreement also provides that “[e]ach Alliance member must provide a minimum of 10% coverage,” but adds that “[n]o individual Alliance member offer can cover more than 50 percent of total taxpayers ..., and this taxpayer population must be within the total aggregate coverage scope of 70%.” FAC, Exhibit B, arts. I.A and I.D. The upshot is that under the 2005 Agreement no FFA member is permitted to offer free services to more than 71.4% (ie., five-sevenths) of the taxpayers whose AGI is less than $54,000.

D. Plaintiffs Claims

1. General Allegations

According to Plaintiffs, “taxpayers and tax preparers who electronically prepare and file federal tax and information returns through the IRS’ e-file program are required to file those returns through private companies, including members of the [FFA], instead of directly with the IRS.” FAC ¶ 16. In addition, “the IRS provides substantial incentives to taxpayers who file their returns electronically, including quicker processing and more rapid tax refunds, and threatens those who do not with a greater likelihood of an audit.” Id. ¶ 17.

Plaintiffs characterize the 2002 and 2005 Agreements between Defendants FFA and the IRS as follows:

Pursuant to the [FFA’s] agreement with the IRS, the Corporate Defendants and members of the [FFA] agreed to develop and maintain the IRS’s electronic tax forms and filing system (IRS e-file) for the IRS under the IRS’s direct guidance, supervision and control. In return, the IRS agreed not to independently develop and maintain its own tax return e-filing system, which it had otherwise intended to do, and which all taxpayers and tax preparers could have used to electronically prepare and/or file their federal tax and information returns with the IRS at little or no cost. All of this was done under the guise of providing free e-filing to certain low-income taxpayers. However, the practical effect and true purpose of the agreement was to deny free e-filing to all taxpayers, and to permit the Corporate Defendants and members of the [FFA] to charge Plaintiffs and members of the proposed class exorbitant and illegal fees for e-filing. The IRS, the Corporate Defendants, and all members of the [FFA] benefitted from this arrangement to the great expense and detriment of Plaintiffs and the proposed class.

Id. ¶ 18. In sum, Plaintiffs allege that “[t]he Agreements wrongfully ‘privatized’ IRS e-file and the IRS’s quintessential government task of developing, receiving, collecting and processing tax returns by allowing [FFA] members to reap profits by charging taxpayers and tax preparers substantial and legally unauthorized fees to electronically file returns with the IRS.” Id. ¶ 17.

Plaintiffs further allege that “when renewing the 2002 Agreement with the IRS in 2005, the members of the [FFA] illegally agreed among themselves that no member of the [FFA] would individually offer free e-filing services to more than fifty percent of taxpayers, and that the members of the [FFA] collectively would not offer free e-filing services to more than seventy percent of taxpayers.” Id. ¶ 19. According to Plaintiffs, “[t]hat illegal agreement among competitors to restrict output had the effect of raising prices in the market for tax preparation software, including internet-based software, and e-filing services,” and directly caused “Plaintiffs and the members of the proposed class [to pay] supracompetitive prices for the tax preparation software and e-filing services that they purchased.” Id.

2. Count I — Claim Under the APA Against All Defendants and the Defendant Class for Violation of the IOAA, 31 U.S.C. § 9701

To lay the foundation for their claim for a refund of fees unlawfully charged by Defendants, Plaintiffs allege three important facts: (1) “[t]he IRS is statutorily-required to collect tax and information returns from taxpayers, and taxpayers are required to file such returns with the IRS, in accordance with the rules and regulations promulgated by the IRS,” id. ¶ 56; (2) “[t]he option to file federal tax and information returns electronically with the IRS is a service or thing of value within the meaning of 31 U.S.C. § 9701,” id. ¶ 57; and (3) “[a]t all material times hereto, the Corporate Defendants acted on behalf of and as agents of the IRS.” Id. ¶ 54.

The heart of Plaintiffs’ IOAA/APA claim is their allegation that Defendants and the defendant class failed to follow the rule that, “[i]n setting the fees for filing tax and information returns with the IRS, the IRS and/or the Corporate Defendants, as agents of the IRS, were required under the [IOAA] to charge only such fees that are ‘(1) fair; and (2) based on — (A) the costs to the government; (B) the value of the service or thing to the recipient; (C) public policy or interest served; and (D) other relevant facts.’ ” Id. ¶ 58 (quoting 31 U.S.C. § 9701(b)). Instead, “the fees charged were based solely on the profit that the Corporate Defendants believed they could extract from taxpayers and tax preparers.” Id. ¶ 59. Plaintiffs therefore claim that they and the proposed plaintiff class “are entitled to ... injunctive relief prohibiting the IRS and/or the Corporate Defendants from charging such fees in the future” as well as “the imposition of a constructive trust [on] and a refund of such fees.” Id. ¶ 65; see also id. ¶ 55.

3. Count II — Claim Against the Corporate Defendants and the Defendant Class for Violation of Section 1 of the Sherman Act, 15 U.S.C. § l

In support of their claim against the Corporate Defendants and the defendant class (but not against Defendant IRS) under Section 1 of the Sherman Act, 15 U.S.C. § 1, Plaintiffs allege the following: (1) “[t]he relevant product/service market is the market for electronic tax preparation software, including internet-based software, and e-filing services,” id. ¶ 67; (2) “[t]he relevant geographic market includes the United States and its territories,” id. ¶ 68; (3) “[a]ll of the Defendant members of the Cartel [i.e., the FFA], with the exception of the Free File Alliance, are direct horizontal competitors, or potential horizontal competitors, in the relevant produci/service and geographic markets,” id. ¶ 69; and (4) “[t]he Corporate Defendants and other members of the Cartel control the vast majority of the market, if not the entire market, for electronic tax preparation software, including internet-based software, and e-filing services in the United States and its territories.” Id. ¶ 81.

Plaintiffs further allege that the Corporate Defendants’ and the defendant class nakedly restricted output by “explicitly agreeing] among themselves [in the 2005 Agreement] that no member of the Cartel would individually offer free e-filing services to more than fifty percent of taxpayers, and that the Cartel collectively would not offer free e-filing services to more than seventy percent of taxpayers.” Id. ¶71. According to Plaintiffs, “[t]he Corporate Defendants’ collusion by and through the Cartel and the 2005 Agreement directly permitted the Corporate Defendants to charge Plaintiffs supracompetitive prices for their electronic tax preparation software, including internet-based software, and e-filing services, to Plaintiffs’ great detriment and loss, depriving Plaintiffs and members of the proposed plaintiff class of a myriad of price and non-price discounts, including lower prices and free services.” Id. ¶ 76.

Plaintiffs allege that, by entering into the 2005 Agreement, the Corporate Defendants and the defendant class have unlawfully restrained trade in violation of Section 1 of the Sherman Act. See id. ¶¶ 73, 74, 80. Plaintiffs, on behalf of themselves and the proposed plaintiff class, seek treble damages pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, as well as injunctive relief pursuant to Section 16 of the Clayton Act, 15 U.S.C. § 26. See id. ¶¶ 84-85.

II. Legal Standards

The Corporate Defendants have moved to dismiss Plaintiffs’ First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1). The Corporate Defendants’ argument that Plaintiffs lack constitutional and prudential standing implicates Rule 12(b)(1); all of the Corporate Defendants’ other arguments for dismissal implicate Rule 12(b)(6).

A. Fed. R. Civ. P. 12(b)(6)

The Supreme Court has summarized as follows the legal standard applicable to a Fed. R. Civ. P. 12(b)(6) motion to dismiss:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the “grounds” of his “entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (emphasis added) (internal citations and footnote omitted); accord Erickson v. Pardus, — U.S. -, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir.2008)., The Court of Appeals for the Third Circuit recently reexamined the Rule 12(b)(6) standard in light of Twombly and offered the following helpful observations:

The Supreme Court’s Twombly formulation of the pleading standard • can be summed up thus: “stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest” the required element. [Twombly, 127 S.Ct. at 1965.] This “does not impose a probability requirement at the pleading stage,” but instead “simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element. Id.

Phillips, 515 F.3d at 234.

In the wake of Twombly, the Court of Appeals has stated that “[i]t remains an acceptable statement of the [Rule 12(b)(6) ] standard, for example, that courts ‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’” Phillips, 515 F.3d at 233 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)). In so doing, the court usually looks “only to the facts alleged in the complaint and its attachments without reference to other parts of the record,” see Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994), but it also may consider “matters of public record ... and undisputedly authentic documents attached to a motion to dismiss.” Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n. 2 (3d Cir.2006).

B. Fed. R. Civ. P. 12(b)(1)

The Court of Appeals has summarized the law governing Rule 12(b)(1) motions to dismiss as follows:

Challenges to subject matter jurisdiction under Rule 12(b)(1) may be “facial” or “factual.” Facial attacks ... contest the sufficiency of the pleadings, and the trial court must accept the complaint’s allegations as true. In contrast, a trial court considering a factual attack accords plaintiffs allegations no presumption of truth. In a factual attack, the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evi-dentiary hearings.

Turicentro, S.A v. Am. Airlines, Inc., 303 F.3d 293, 300 n. 4 (3d Cir.2002) (internal citations omitted); see also NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir.2001). In Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000), the Court of Appeals further explained how courts should handle facial attacks under Rule 12(b)(1), writing that “[i]n reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” In the context of a Rule 12(b)(1) motion to dismiss, “[t]he plaintiff has the burden of persuasion to convince the court it has jurisdiction.” Id. at 178.

District courts have discretion to treat Rule 12(b)(1) motions as either facial or factual challenges to their subject matter jurisdiction. See Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) (“As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.”); 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1350 n.47 (3d ed. 2004); see also Gould Elecs., Inc., 220 F.3d at 176 (“A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court’s subject matter jurisdiction.”). No party has taken a position on whether I should consider the Corporate Defendants’ 12(b)(1) motions a facial or factual challenge. Since this action was filed quite recently, I find' it more appropriate to consider the Corporate Defendants’ motions a facial challenge to this court’s jurisdiction.

III. Discussion

The Corporate Defendants first argue that this action should be dismissed pursuant to Rule 12(b)(1), because Plaintiffs lack constitutional and prudential standing. As explained below, I disagree.

With respect to Count I — i.e., Plaintiffs’ claim under the IOAA/APA — the Corporate Defendants argue that this claim should be dismissed pursuant to Rule 12(b)(6) on three grounds: (1) because the IOAA does not apply to them in this case; (2) because there is no express or implied private right of action under the IOAA; and (3) because Plaintiffs’ claim fails factually, since the Corporate Defendants do not charge fees for the services they provide as part of the Free File Program. In their responses, Plaintiffs contest grounds (1) and (3) but not ground (2), since they say that Count I is a claim under the Administrative Procedures Act, 5 U.S.C. § 702. I will grant the Corporate Defendants’ motions to dismiss Count I as against them, because I agree that the IOAA does not apply to them in this case. In the alternative, I will dismiss Count I on the grounds that there is no express or implied private right of action under the IOAA, and that Plaintiffs cannot bring an APA claim against the Corporate Defendants, who are not “agencies” within the meaning of the APA. (I need not address the argument that Plaintiffs’ IOAA/APA claim fails factually.) Count I therefore will be dismissed without leave to amend, except to the extent that Plaintiffs have asserted an APA claim against Defendant IRS.

With respect to Count II — i.e., Plaintiffs’ claim under Section 1 of the Sherman Act — the Corporate Defendants argue that this claim should be dismissed pursuant to Rule 12(b)(6) for five reasons: (1) because they are entitled to implied antitrust immunity; (2) because they are shielded from liability under the Noerr-Pennington doctrine; (3) because Plaintiffs lack antitrust standing; (4) because “Plaintiffs have not adequately alleged an agreement to limit free services”; and (5) because “Plaintiffs have failed to plead any restraint on trade in a relevant market.” As explained below, I reject arguments (3), (4), and (5), but I agree that Count II should be dismissed on the ground that the Corporate Defendants are entitled to implied antitrust immunity. As for the Corporate Defendants’ assertion of Noerr-Pennington immunity, I will defer ruling upon it until it is raised in a motion for summary judgment because it requires consideration of non-public matters outside the pleadings. I therefore will dismiss Count II with leave to amend for the reasons stated hereinafter.

Lastly, I will reject the Corporate Defendants’ assertion that the First Amended Complaint should be dismissed pursuant to Rule 12(b)(6), because it is an “untimely attempt to end-run around the APA’s rule-making and judicial review procedures.”

A. Plaintiffs Have Constitutional and Prudential Standing.

1. In General

The Court of Appeals recently summarized the law governing standing as follows:

Article III of the Constitution restricts the “judicial power” of the United States to the resolution of cases and controversies. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Subsumed within this restriction is the requirement that a litigant have standing to challenge the action sought to be adjudicated in the lawsuit. Id. Standing has constitutional and prudential components, both of which must be satisfied before a litigant may seek redress in the federal courts. Id., Wheeler v. Travelers Ins. Co., 22 F.3d 534, 537 (3d Cir.1994). Absent Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiffs claims, and they must be dismissed. Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.2003).

Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006); see also Presbytery of New Jersey of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir.1994) (“We presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record.”).

2. Constitutional Standing

a. Constitutional Standing Doctrine

With regard to the constitutional component of standing, the Supreme Court has declared:

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

The party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a motion for summary judgment, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (emphases added; internal citations, quotations, and footnote omitted).

b. Applying Constitutional Standing Doctrine to This Case

Although the allegations in the First Amended Complaint are not particularly specific, they are sufficient to withstand the Corporate Defendants’ facial challenge to my jurisdiction, and therefore are sufficient to establish Plaintiffs’ constitutional standing at this stage of the action. Plaintiff Byers alleges that she “purchased and used Defendant H & R Block’s tax return preparation software and ‘e-filing’ services in the Commonwealth of Pennsylvania to electronically prepare and e-file her 2006 income tax return with the IRS through the IRS’ e-file service.” FAC ¶ 14. Plaintiff Seltzer did the same with Defendant Intuit’s tax return preparation software and “e-filing” services. See id. ¶ 15.

With respect to their IOAA/APA claim, Plaintiffs also allege that “[mjembers of [Defendant FFA], as agents of the IRS, wrongfully charged Plaintiffs and their proposed class illegal fees to electronically file (‘e-file’) their federal tax and information returns,” id. ¶ 1, and that members of Defendant FFA, including Defendants Block and Intuit, “illegally and inequitably reaped hundreds of millions, if not billions, of dollars in revenues, all at the expense of Plaintiffs and their proposed class.” Id. ¶ 2; see also id. ¶ 20. Plaintiffs therefore seek “a refund of such fees, as well as injunctive relief prohibiting the IRS and/or the Corporate Defendants from charging such fees in the future.” Id. ¶ 65, Prayer for Relief.

With respect to their Sherman Act claim, Plaintiffs allege that Defendants’ “illegal horizontal agreement among direct competitors to restrict output had the effect of raising prices in the market for electronic tax preparation software, including internet-based software, and e-filing services, which caused Plaintiffs and the members of the proposed class to pay supracompetitive prices for the software, programs and e-filing services that they purchased.” Id. ¶ 3. Plaintiffs therefore seek treble damages and injunctive relief pursuant to Sections 4 and 16, respectively, of the Clayton Act. Id. ¶¶ 84-85.

Despite their lack of specificity, the above-quoted paragraphs of the First Amended Complaint show that Plaintiffs have adequately alleged that they have suffered injuries in fact (i.e., the fees that Defendants charged them and the proposed class, and the higher prices they had to pay because of Defendants’ allegedly anticompetitive conduct), that Defendants caused their injuries, and that their injuries likely are redressable by a judgment in their favor in the form of damages and/or injunctive relief. Since I must accept these allegations as true, Plaintiffs have met their burden with respect to the three prongs of the Lujan test, and have established constitutional standing for both of their claims at this early stage of their action. The Corporate Defendants’ facial challenge to Plaintiffs’ constitutional standing therefore fails. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; cf. Bennett v. Spear, 520 U.S. 154, 167-68, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Nat’l Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255-56, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994).

I find unconvincing Defendants FFA and Block’s arguments against Plaintiffs’ constitutional standing. Defendant Block argues that Plaintiff Byers lacks constitutional standing to assert her IOAA/APA claim because “[she] claims that she used [Defendant Block’s] software to electronically file her return through the TRS e-file service,’ but does not say whether she attempted to use, or was eligible for, the Free File Program.” Defendant Block’s Memorandum of Law, at 12. According to Defendant Block, “[Plaintiff Byers’s] failure to make such an allegation is fatal to her standing to assert the IOAA/APA claim, because that claim is premised on Block DTS’s membership and participation in the Free File Program.” Id. I am not persuaded by this argument. It is true that the First Amended Complaint does not allege whether Plaintiff Byers qualified for the Free File Program, but that is not the focus of the constitutional standing inquiry. Rather, the focus of the inquiry is Plaintiff Byers’s allegation that, inter alia, “Members of [Defendant FFA], as agents of the IRS, wrongfully charged Plaintiffs and their proposed class illegal fees to electronically file (‘e-file’) their federal tax and information returns.” FAC ¶ 1. As noted previously, this allegation, combined with the others quoted above, satisfies the three elements of constitutional standing for Plaintiff Byers’s IOAA/ APA claim (i.e., injury in fact, causation, and redressability)., See Turicentro, 303 F.3d at 300 n. 4 (“Facial attacks ... contest the sufficiency of the pleadings, and the trial court must accept the complaint’s allegations as true.”); Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 294 (3d Cir.2005) (“Injury-in-fact is not Mount Everest.”).

As for Defendant FFA, it argues that Plaintiffs lack constitutional standing against it because it “makes only free services available through the Free File Program and provides no services itself.” Defendant FFA’s Memorandum of Law at 30 n. 11.1 reject this argument because, even if discovery will reveal the truth of Defendant FFA’s assertions, at this point I am required to accept as true Plaintiffs’ contrary assertion that Defendant FFA and its members charged them and the proposed class fees to file their federal income tax returns electronically. See FAC ¶¶ 1, 2, 20; see also Danvers Motor Co., Inc., 432 F.3d at 292 (“Because we are bound to read the complaint as true, we cannot ignore Plaintiffs claims that the BOP is ‘illegal,’ ‘imposed’ upon them, ‘compelled,’ and ‘coercive.’ ”) (internal citations omitted).

3. Prudential Standing

a. Prudential Standing Doctrine

“Even when th[e] constitutional minimum has been met, judicially created prudential limitations may defeat a party’s standing to maintain a suit.” The Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir.2000). With regard to the prudential component of standing, the Supreme Court has observed:

Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.”

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); see also Mariana v. Fisher, 338 F.3d 189, 204-05 (3d Cir.2003). Put more simply, prudential standing “embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Newdow, 542 U.S. at 11, 124 S.Ct. 2301 (internal quotation omitted).

b. Applying Prudential Standing Doctrine to This Case

Plaintiffs have prudential standing to bring this action, and I find Defendant FFA’s arguments to the contrary unpersuasive. See Defendant FFA’s Memorandum of Law, at 31-33.

Defendant FFA argues that Plaintiffs lack prudential standing, because they are “rely[ing] on the potential standing of absent class members.” Defendant FFA’s Memorandum of Law, at 32. I disagree. As the discussion above has demonstrated, Plaintiffs have constitutional standing to bring this class action. See Section III. A.2, supra. Plaintiffs therefore are not relying on the potential standing of members of the proposed class, nor raising the legal rights of others, such that they should be denied prudential standing.

With regard to the second prudential limitation on standing, Defendant FFA argues that the two “central premises” of the First Amended Complaint “amount only to generalized grievances regarding decisions made by Congress and delegated to the IRS that are not appropriately addressed in federal court.” Defendant FFA’s Memorandum of Law, at 32. Defendant FFA identifies these two central premises as (1) the allegation that the agreements between Defendants FFA and the' IRS “wrongfully ‘privatized’ IRS e-file and the IRS’s quintessential government task of developing, receiving, collecting and processing tax returns by allowing [FFA] members to reap profits by charging taxpayers and tax preparers substantial and legally unauthorized fees to electronically file returns with the IRS”; and (2) the allegation that in return for Defendant FFA’s commitments under the agreements Defendant IRS “agreed not to independently develop and maintain its own tax return e-filing system, which it had otherwise intended to do, and which all taxpayers and tax preparers could have used to electronically prepare and/or file their federal tax and information returns with the IRS at little or no cost.” FAC ¶¶ 17, 18; see also Defendant FFA’s Memorandum of Law, at 32.

I again disagree. The First Amended Complaint certainly contains the above-quoted allegations about the “wrongful privatization” of the IRS’s tasks and about the harm that Plaintiffs believe they and members of the proposed class have suffered because of the IRS’s decision not to compete with the FFA. But those allegations do not constitute an attempt to litigate “abstract questions of wide public significance amounting to generalized grievances.” Mariana, 338 F.3d at 205. Rather, they are part of the factual basis for Plaintiffs’ two claims: (1) for a refund of fees allegedly charged by Defendants in violation of the IOAA; and for treble damages and injunctive relief to redress the Corporate Defendants’ alleged violation of Section 1 of the Sherman Act. See FAC ¶¶ 53-85. Plaintiffs therefore do not run afoul of the second prudential limitation on standing, and Defendant FFA’s contrary argument fails.

Lastly, Defendant FFA argues that Plaintiffs lack prudential standing to assert their IOAA/APA claim because it lies outside the “zone of interests” protected by the IOAA. See Defendant FFA’s Memorandum of Law, at 33. I reject this argument because Plaintiffs’ IOAA/APA claim is not so outlandish that I must decline to adjudicate it. See Davis by Davis v. Philadelphia Housing Auth., 121 F.3d 92, 101 (3d Cir.1997) (“[T]he zone of interests test is ‘not meant to be especially demanding.’ ”) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). After all, there is federal case law enforcing the IOAA in the context of appeals from a government agency’s denials of refund petitions, see, e.g., Nat’l Ass’n of Broadcasters v. FCC, 554 F.2d 1118 (D.C.Cir.1976), I have found only one published decision refusing to apply the IOAA to a private entity, see Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C.Cir.1999), and I have found no published decision that has addressed the issue of whether there is a private right of action under the IOAA. In this context, Plaintiffs’ IOAA/APA claim is within the zone of interests protected by the IOAA, and they have prudential standing to assert it.

B. Count I — Plaintiffs’ IOAA/APA Claim

As mentioned above, the Corporate Defendants have moved to dismiss Count I (Plaintiffs’ IOAA/APA claim) on the grounds that (1) the IOAA does not apply to them in this case; (2) that there is no express or implied private right of action under the IOAA; and (3) that the claim fails factually since the Corporate Defendants do not charge fees for the services they provide as part of the Free File Program. In their responses, Plaintiffs have contested grounds (1) and (3) but not ground (2), since they say that Count I is a claim under the Administrative Procedures Act, 5 U.S.C. § 702.

I will grant the Corporate Defendants’ Rule 12(b)(6) motions to dismiss Count I as against them because I agree that the IOAA does not apply to them in this case. In the alternative, I will dismiss Count I on the grounds that there is no express or implied private right of action under the IOAA, and that Plaintiffs cannot bring an APA claim against the Corporate Defendants, who are not “agencies” within the meaning of the APA. (I need not address the argument that Plaintiffs’ IOAA/APA claim fails factually.) Count I therefore will be dismissed without leave to amend, except to the extent that Plaintiffs have asserted an APA claim against Defendant IRS.

1. The IOAA Does Not Apply to the Corporate Defendants.

“[T]he starting point for interpreting a statute is the language of the statute itself,” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980), and “[ajbsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Id.

As is clear from its text, the IOAA regulates only the charge for “a service or thing of value provided by an agency.” In determining whether the Corporate Defendants are subject to the IOAA’s fee-setting rules, the question before me is therefore whether the electronic tax preparation and filing services provided by the Corporate Defendants pursuant to their agreements with the IRS can be considered “service[s] or thing[s] of value provided by an agency.” The Corporate Defendants argue that this question should be answered in the negative, and, as explained below, I agree.

In almost all of the actions brought under the IOAA, the fees at issue were set by an agency of the United States government, see, e.g., Ayuda, Inc. v. Attorney General, 848 F.2d 1297 (D.C.Cir.1988) (upholding fees charged by the Immigration and Naturalization Service against an IOAA challenge), so courts rarely have been confronted with the issue of whether the IOAA applies to fees charged by private entities like the Corporate Defendants. In fact, I am aware of only one reported decision that has addressed the issue: Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C.Cir.1999), aff'g 2 F.Supp.2d 22 (D.D.C.1998). I will summarize Thomas and then apply its principles to this case.

a. Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C.Cir.1999)

In Thomas, the plaintiffs alleged that the National Science Foundation (“NSF”) and Network Solutions, Inc. had violated the IOAA by charging improper fees to register and maintain internet domain names. 176 F.3d at 505. After NSF (a federal agency) assumed responsibility in 1991 and 1992 for “coordinating and funding the management of the nonmilitary portion of the Internet infrastructure,” id. at 504, it “solicited competitive proposals to provide a variety of infrastructure services, including domain name registration services.” Id. Network Solutions submitted one such proposal, and was chosen by NSF to become “the exclusive registry and exclusive registrar for the ‘.com,’ ‘.org,’ ‘.net,’ and ‘.edu’ top-level domains.” Id. at 505. The Court of Appeals for the District of Columbia Circuit summarized as follows the cooperative agreement between NSF and Network Solutions:

The agreement provided that NSF would compensate Network Solutions in accordance with a cost-plus-fixed-fee arrangement. The cost-plus-fixed-fee arrangement ended on September 14, 1995. Pursuant to an amendment to the agreement, Network Solutions started charging domain name registrants a one-time registration fee of $100 for registration services for the first two-year period, and $50 per year thereafter, with 70 percent of the fees going to Network Solutions as ‘consideration for the services provided,’ and 30 percent set aside, in a custodial account held by Network Solutions on NSF’s behalf, for preserving and enhancing the ‘Intellectual Infrastructure of the Internet.’ The 30 percent portion — the ‘Preservation Assessment’ — was discontinued for registrations made on or after April 1, 1998.

Id. A footnote at the end of the above-quoted passage explains that “[a]t that time, Network Solutions started charging $70 for registration services for the first two-year period, and $35 per year thereafter. Later in 1998, NSF transferred responsibility for administering its cooperative agreement with Network Solutions to the Department of Commerce.” Id. n. 7.

In determining whether the fees charged by Network Solutions were subject to the requirements of the IOAA, the Thomas Court began its analysis by declaring that “[gjovernment agencies cannot escape responsibility for failing to perform their statutory duties by hiring private parties to perform those duties.” Id. at 510. The Court then noted that the IOAA might have applied to the fees charged by Network Solutions “[i]f a statute [had] required NSF to register domain names, and [if] NSF [had] farmed this out to Network Solutions.” Id. But, the Court observed, “that is not the situation before us.” Id. Instead, the statute at issue in Thomas — 42 U.S.C. § 1862(g) — -authorized the NSF to “foster and support access by the research and education communities to computer networks which may be used substantially for purposes in addition to research and education in the sciences and engineering, if the additional uses will tend to increase the overall capabilities of the networks to support such research and education activities.” 42 U.S.C. § 1862(g) (2008). Regardless of what this statutory language actually authorized the NSF to do, the Thomas Court was certain that it did not require the NSF to register and renew domain names. Id. The Court therefore concluded that the NSF was not subject to any statutory mandate that would require its contractor, Network Solutions, to set its fees in accordance with the requirements of the IOAA. Id.

The Court then addressed the plaintiffs’ argument that Network Solutions’ fees should be subject to the IOAA because Network Solutions had been hired by a federal agency and allegedly was acting as NSF’s agent. Quoting a paragraph in the plaintiffs’ amended complaint, the Court found that the plaintiffs had admitted that “Network Solutions' — -not NSF — controlled the domain name registration process,” and that that admission scuttled the plaintiffs’ argument. Id. at 510-11 n. 17. As the Court put it: “[T]he [IOAA] applies only to ‘a service or thing of value provided by an agency.’ Here, a private party (Network Solutions) performed the domain name registration services — and did so as it saw fit.” Id. at 510 (emphasis in original) (internal citation omitted).

The Thomas Court next turned to the plaintiffs’ argument that the IOAA should be construed broadly so that “domain name registration is a government service or thing of value within the Act’s meaning.” Id. at 511 (emphasis in original); see also Ayuda, Inc. v. Attorney General, 848 F.2d 1297, 1300 (D.C.Cir.1988) (“[0]ur pri- or cases teach unmistakably that the phrase ‘service or thing of value’ is to be construed broadly.”). This argument failed to persuade the Court, which described domain name registration as a “recent and novel function” that Congress had not required any federal agency to perform and that, at least in the early days of the internet, had been performed by private entities. Id. The Court therefore concluded that domain name registration, despite its impact on the public, was not a “quintessential government service” that NSF was prohibited from farming out to a private entity like Network Solutions. Id.

The Thomas Court ended its analysis of the IOAA by observing that “[t]he Act is a nonfit in other ways.” Id. Specifically, the IOAA “applies to monies bound for the federal treasury,” id., and is part of a statutory scheme that requires “official[s] or agent[s] of the United States Government having custody or possession of public money” to “keep the money safe” and “deposit [it] in the Treasury as soon as practicable,” with the penalty for noncompliance being removal from office. 31 U.S.C. § 3302(a), (b), (d) (2008). In the Court’s view, this statutory scheme was not designed for private actors like Network Solutions, which was entitled to keep the fees it collected under its cooperative agreement with NSF. 176 F.3d at 511.

Relying on “all these reasons,” the Thomas Court held that “the [IOAA] does not cover the fees Network Solutions charged for its services.” Id.

b. Applying Thomas to This Case.

Applying Thomas’s principles to this case, I conclude that the fees charged by the Corporate Defendants are not subject to the requirements of the IOAA. Therefore I will grant the Corporate Defendants’ Rule 12(b)(6) motions to dismiss Count I as against them on this ground.

The most obvious similarity between this case and Thomas is that both raise the issue of whether the IOAA may be applied to fees charged by a private entity. The district court in Thomas rejected this notion out of hand, see Thomas, 2 F.Supp.2d 22, 32-33, 36, while the Court of Appeals observed that the IOAA was a “nonfit” when applied to a private entity. See Thomas, 176 F.3d at 511. Even under the Court of Appeals’ more generous analysis, the IOAA could apply to fees charged by a private entity only under special circumstances that are not present in this case. Specifically, the IOAA would apply only if: (1)the private entity were tasked with performing a federal agency’s statutory duty; (2) the federal agency effectively controlled the private entity’s conduct; or (3) the federal agency contracted with the entity to provide a quintessential government service. See id.

i. The IRS Did Not Farm Out a Statutory Duty to the Corporate Defendants.

Like the NSF in Thomas, the IRS in this case was not subject to any statutory mandate that would require the Corporate Defendants to set their fees in accordance with the requirements of the IOAA. The statutory authorization for the Free 'File Program is found in § 2001(a) of the RRA, which declared that:

(a) In general.-It is the policy of Congress that—

(1) paperless filing should be the preferred and most convenient means of filing Federal tax and information returns;

(2) it should be the goal of the Internal Revenue Service to have at least 80 percent of all such returns filed electronically by the year 2007; and

(3) the Internal Revenue Service should cooperate with and encourage the private sector by encouraging competition to increase electronic filing of such returns.

Pub.L. No. 105-206, Title II, 112 Stat. 723 (1998); accord 26 U.S.C. § 6011(f) (2008); FAC, Exhibit A, art. I (identifying one of objectives of the Free File Program as “[sjupporting the IRS’s statutory goals of increased e-filing, pursuant to the IRS Restructuring and Reform Act of 1998, which encouraged the IRS to set a goal of having 80% of Federal tax and information returns filed electronically by the year 2007”). As in Thomas, I need not determine the precise scope of the Congressional authorization in subsection (a)(3), for that language certainly did not require the IRS to create the Free File Program or anything like it. 176 F.3d at 510. The language is permissive — “the Internal Revenue Service should ... ” — and gave the IRS wide discretion to determine how best to “cooperate with and encourage the private sector” and “encourag[e] competition to increase electronic filing.” Like the NSF in Thomas, the IRS decided that the Free File Program represented the best way to achieve its electronic filing goals, but in so doing it did not “farm out” a statutory duty. Id. This aspect of Thom as’s reasoning therefore compels me to conclude that the IOAA does not apply to the fees allegedly charged by the Corporate Defendants.

ii. The IRS Did Not Effectively Control the Corporate Defendants.

The IRS’s relationship with Defendant FFA is also analogous to the NSF’s relationship with Network Solutions in Thomas. Recall that in Thomas the Court of Appeals relied on allegations in the plaintiffs’ complaint to find that “Network Solutions — not NSF — controlled the domain name registration process,” and that the IOAA therefore would not apply to Network Solutions’ fees on the ground that Network Solutions was NSF’s “agent.” Id. at 510-11 n. 17. Here, Plaintiffs do not concede the issue, but the 2002 and 2005 Agreements establishing the Free File Program show that the Corporate Defendants control the content of the services they provide, and that they are thus not the IRS’s “agents.” The IOAA therefore does not apply to the Corporate Defendants’ alleged fees on this ground.

iii. The Corporate Defendants Do Not Provide a Quintessential Government Service.

Plaintiffs argue strenuously that Thomas is distinguishable from this case because, as they allege in their First Amended Complaint, “[t]he option to file federal tax and information returns electronically with the IRS is a service or thing of value within the meaning of 31 U.S.C. § 9701.” FACT 57. I disagree. Assuming that Thomas’s broad interpretation of the phrase “service or thing of value” was not dictum, it is clear that electronic tax preparation and filing, as provided through the Free File Program or IRS e-file, is neither a “government service or thing of value” nor a “quintessential government task” nor anything else Plaintiffs would call it in an effort to bring it within the scope of the IOAA. Like the domain name registration service at issue in Thomas, electronic tax preparation and filing is a “recent and novel” option, 176 F.3d at 511, and though Congress has passed legislation to encourage it, Congress clearly has decided that the IRS need not monopolize it. See H.R. Rep. No. 107-575, p. 38 (2002) (“[T]he IRS stated that it did not intend to enter into the tax preparation software business; instead, it intended to work in partnership with industry to expand the electronic filing of tax returns.... The Committee strongly believes in the industry-IRS partnership concept .... ”). In my view, the Court of Appeals in Thomas got it right when it wrote that “[sjimply because NSF might have been able to perform domain name registration does not transform this activity into a government service or thing of value.” 176 F.3d at 511 (emphasis in original). Similarly, the fact that the IRS might have been able to provide electronic tax preparation and filing services to the public without any help from the private sector does not make electronic tax preparation and filing a government “service or thing of value” within the meaning of the IOAA. Relying on the above-summarized reasoning in Thomas, I therefore hold that the electronic tax preparation and filing services provided through the Free File Program and IRS e-file are not “serviee[s] or thing[s] of value” within the meaning of the IOAA.

iv. The Cases Cited By Plaintiffs Are Distinguishable and Inapposite.

Plaintiffs cite several cases for the proposition that “a private entity is subject to the same restrictions as a government agency when it is performing a government function.” Plaintiffs Response to Intuit’s Motion, at 11. All of these cases are distinguishable and inapposite; they do not affect my conclusion that the fees allegedly charged by the Corporate Defendants are not subject to the IOAA.

The first case Plaintiffs cite is Motor Coach Indus., Inc. v. Dole, 725 F.2d 958 (4th Cir.1984). The issue in Motor Coach was whether federal procurement guidelines had to be followed where the Federal Aviation Administration (FAA) had waived millions of dollars’ worth of fees against air carriers at Dulles International Airport in return for the air carriers’ creation and funding of a trust that would pay for the expansion of bus transportation at the struggling airport. Id. at 960-62. The purpose of this scheme was to allow the FAA to fund the expansion of bus transportation with the air carriers’ money (thereby avoiding the need for additional funds from Congress), so it was not surprising that the FAA exercised substantial control over the trust’s activities. Id. at 961 (“Officially the airlines were the trust settlors, but the FAA maintained firm control over vital aspects of the trust.”). When the losing bidder for the bus transportation contract sued to enjoin the activities of the trust, it also was not surprising that the Court of Appeals held that the trust was public in character, and that its expenditures therefore had to comply with the applicable federal procurement guidelines. Id. at 965.

It should be noted first that Motor Coach does not stand for the proposition that a private entity is subject to the same restrictions as a government agency when it is performing a government function. Instead, it stands for the proposition that a private entity is subject to those restrictions when it is controlled by a government agency. Motor Coach is therefore consistent with Thomas, and distinguishable from this case on the ground that the IRS exercises little control over the FFA and the Free File Program.

Plaintiffs’ reliance on two Controller General decisions is also misplaced. In Contractors Collecting Fees at Agency-Hosted Conferences, No. B-306663, 2006 WL 39435 (Comp.Gen. Jan. 4, 2006), the Comptroller General concluded that the National Institutes of Health (NIH) “may not charge an attendance fee at conferences and retain the proceeds, nor permit its contractor to do so, because NIH lacks statutory authority.” 2006 WL 39435, at *1. The key to this decision was not that any fee charged by the NIH’s contractor would be subject to the IOAA but rather that, in the absence of statutory authority, neither the NIH nor its contractor could collect and retain a conference attendance fee. (The Comptroller General held that the proceeds from any fee charged would have to be deposited in the Treasury under the Miscellaneous Receipts Statute, 31 U.S.C. § 3302(b). Id.) This case is distinguishable, because the IRS had more than enough statutory authority to create the Free File Program. See IRS Restructuring and Reform Act of 1998, Pub.L. No. 105— 206, § 2201(a)(3), 112 Stat. 723 (1998) (“The Internal Revenue Service should cooperate with and encourage the private sector by encouraging competition to increase electronic filing of such returns.”).

SBA’s Imposition of Oversight Review Fees on PLP Lenders, No. B-300248, 2004 WL 77861 (Comp.Gen. Jan. 15, 2004) turned on the same issue. In that case, the Small Business Administration (“SBA”) operated a program pursuant to which lenders in its Preferred Lender Program (“PLP”) could make SBA-guaranteed loans without prior SBA approval, provided that the SBA reviewed these loans at least annually. Id. at *1. The problem with the program was that the private firm the SBA had contracted with to conduct these annual reviews was compensated through fees charged to the PLP lenders rather than through the SBA’s eongressionally appropriated funds. Id. As in Contractors Collecting Fees at Agency-Hosted Conferences, the Comptroller General held that this practice was unlawful in the absence of statutory authority for the SBA or its contractor to collect and retain fees from the PLP lenders. Id. Again, the key point was not that the fees were subject to the IOAA, but that “the SBA ha[d] improperly augmented its appropriations by not bearing the costs of the PLP oversight reviews itself and instead using the fees collected from PLP lenders to pay for these costs.” Id. This reasoning is not applicable to this case, where the IRS had statutory authority to create the Free File Program and IRS e-file and where, as explained above, the available authorities have led me to conclude that the IOAA does not apply to the fees allegedly charged by the Corporate Defendants.

2. Plaintiffs Cannot Sue the Corporate Defendants Under the APA.

The Corporate Defendants, believing that Count I is a claim under the IOAA, have argued that no private right of action should be implied under the IOAA. Plaintiffs’ response is that they “are not seeking to imply a private right of action under the IOAA.” Plaintiffs’ Response to Intuit’s Motion, at 17. “Rather, they are pursuing an equitable remedy under the provisions of the Administrative Procedures Act.” Id. As explained below, I conclude that Plaintiffs cannot sue the Corporate Defendants under the APA, because they are not “agencies” within the meaning of the APA. Therefore, to the extent that Count I asserts a claim against the Corporate Defendants under the APA, it will be dismissed on this ground.

Under the APA, “ ‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” 5 U.S.C. § 551(1), 701(b)(1)