District Court Equitably Tolls 2-Year Deadline to File Refund Suit

Frequent guest blogger Carl Smith discusses an important recent decision holding that the time to file a refund suit is not a jurisdictional time frame. In the case discussed by Carl, the facts allowed the taxpayer to successfully argue for an extended time period within which to file based on equitable tolling. Keith

PT readers know that Keith and I – through the Harvard clinic – have been arguing in a lot of cases that judicial filing deadlines in the tax area are no longer jurisdictional and are subject to equitable tolling under recent non-tax Supreme Court case law limiting the use of the term “jurisdictional” and expanding the use of equitable tolling. So far, we have lost on Tax Court innocent spouse and Collection Due Process filing deadlines; appellate cases on Tax Court deficiency and whistleblower awards jurisdiction deadlines are pending.

But, while I was still running a tax clinic at Cardozo School of Law, as an amicus, I helped persuade the Ninth Circuit to hold that the then-9-month filing deadline at section 6532(c) to bring a district court wrongful levy suit is not jurisdictional and is subject to equitable tolling. Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2015). Relying both on the recent Supreme Court non-tax case law and Volpicelli, a district court has just held that the 2-year deadline at section 6532(a) to bring a district court or Court of Federal Claims tax refund suit is not jurisdictional and is subject to equitable tolling. Wagner v. United States, E.D. Wash. Docket No. 2:18-CV-76 (Nov. 16, 2018).

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In Wagner, a couple filed a 2012 joint income tax return showing an overpayment of $1,364,363 and asked that $500,000 of the overpayment be refunded and the rest be applied as a credit to 2013 estimated taxes. I quote the remainder of the brief facts from the opinion:

In November, 2014, the IRS sent a letter disallowing some of the refund. . . .

Specifically, the IRS indicated it was allowing only $839,999 of the claim, and disallowing the remainder because “we are unable able to verify the total amount of your withholding based on information provided by the Social Security Administration.” Id. The amount of the disallowed claim was $524,364.

Plaintiffs replied by letter on December 5, 2014, indicating they were requesting a formal Appeal to the findings and also requesting an oral hearing. . . . They also provided additional information regarding the requested refund.

Nothing happened until May, 2016 when the IRS sent another letter, this time stating it was disallowing the entire $1,364,363 refund claim. . . .Specifically, the letter stated:

This letter is your notice that we’ve partially disallowed your claim for credit for the period shown above. We allowed only $.00 of the claim.  Id. 

The letter also indicated that Plaintiffs were now going to owe interest and penalties. Although it did not explicitly say so in the letter, the determination of the $.00 allowance of the claim meant the IRS was also disallowing $839,999 of the refund claim that it has previously allowed as indicated in the November, 2014 letter. Because of this, Plaintiffs were now being assessed an outstanding liability of $859,557.84. As a result, the IRS took $335,871 from the 2014 refund and applied it to the 2012 tax liability since this amount had come from Plaintiffs’ request to forward the remainder of the 2012 refund claim to the next year’s tax bill.

In early 2018, the taxpayers filed suit seeking a refund of $839,999 – i.e., only part of the original overpayment shown on the return. The DOJ moved to dismiss the suit for lack of jurisdiction as untimely, arguing that the 2-year period in section 6532(a) to bring such a suit commenced when the IRS sent its first letter in November 2014.

The district court ruled in the alternative. It held that the filing deadline for the refund suit commenced in May 2016, when the second IRS letter was issued. In the alternative, because of the confusing nature of the IRS correspondence, if the filing deadline actually started in November 2014, the filing deadline was tolled because of “equitable considerations” generated by this confusing correspondence, “including the fact that Plaintiffs were informed that $839,999 of the requested refund claim was not going to be allowed less than 6 months before the statute of limitations expired . . . .”

Before applying the alternative holding of equitable tolling, the court examined whether the filing deadline was jurisdictional under recent non-tax Supreme Court case law summarized in United States v. Wong, 135 S. Ct. 1625 (2015) (finding the filing deadlines for Federal Court Claims Act suits in 28 U.S.C. § 2401(b) nonjurisdictional and subject to equitable tolling). In Wong, the Court held that filing deadlines are normally nonjurisdictional claims processing rules. Congress could, though, make such deadlines jurisdictional through a “clear statement” in the statute, but “Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it.” Id. at 1632.

The district court in Wagner also looked to Volpicelli – a Ninth Circuit opinion holding the then-9-month filing deadline in section 6532(c) to bring a district court wrongful levy suit nonjurisdictional and subject to equitable tolling. We blogged on Volpicelli numerous times in 2015: here, here, here, and here. Volpicelli had been decided a few months before Wong. The DOJ had asked for reconsideration of Volpicelli by the Ninth Circuit en banc, since Volpicelli disagreed with holdings of at least one other Circuit that were made prior to the 2004 change in the Supreme Court’s jurisprudence on jurisdiction. When the Ninth Circuit declined to hear the Volpicelli case en banc, and the Supreme Court shortly thereafter issued its opinion in Wong, apparently the Solicitor General lost interest in appealing Volpicelli to the Supreme Court, since it is hard to imagine the SG winning Volpicelli after losing Wong (where the statutory language appeared even more mandatory). In all the subsequent cases that Keith and I have been litigating, though, the DOJ always states that it still disagrees with Volpicelli.

The district court in Wagner concluded that Congress had done nothing special in section 6532(a) to make it jurisdictional and not subject to the usual presumption that filing deadlines are subject to equitable tolling. The district court wrote:

First, Congress’ separation of the filing deadline in § 6532(a) from the waiver of sovereign immunity found in 28 U.S.C. § 1346(a)(1), as well as the placement of § 6532 in the Tax Code under subtitle of the Internal Revenue Code labeled “Procedure and Administration, is a strong indication that the time bar is not jurisdictional. Second, [unlike section 6511 discussed in United States v. Brockamp, 519 U.S. 347 (1997),] the time limitation is purely procedural and has no substantive impact on the amount of recovery. It speaks only to a claim’s timeliness and not to a court’s power. Third, the recovery of a wrongfully withheld refund is akin to the traditional common law torts of conversion. Fourth, the deadline set forth in § 6532(a) is not cast in jurisdictional terms and the language/text used does not have any jurisdictional significance. Finally, the text does not define a federal court’s jurisdiction over tort claims generally, does not address its authority to hear untimely suits, or in any way limit its usual equitable powers.

Observations 

Although the DOJ will be hopping mad about the Wagner ruling, the DOJ will not be able to appeal it to the Ninth Circuit until the district court determines the amount, if any, of the appropriate refund. So, stay tuned.

The holding in Wagner is entirely predictable, since an earlier district court in the Ninth Circuit had stated that, in light of Volpicelli, “it remains an open question” whether the filing deadline in section 6532(a) is subject to equitable tolling in an appropriate case”. Hessler v. United States, 2016 U.S. Dist. LEXIS 1210 (E.D. Cal. 2016). Accord Drake v. United States, 2011 U.S. Dist. LEXIS 22563 (D. AZ. 2011) (doubting but not deciding whether the filing deadline in § 6532(a) is still jurisdictional in light of recent Supreme Court case law)

Whether the section 6532(a) filing deadline is jurisdictional or subject to estoppel are two of the issues that are currently being litigated in the Second Circuit in Pfizer v. United States, Docket No. 17-2307. Oral argument was had in Pfizer on February 13, 2018, and an opinion could come out any day – though the court has alternative ways of deciding the case that might avoid addressing these issues. The Harvard clinic submitted an amicus brief in Pfizer arguing that the section 6532(a) filing deadline is not jurisdictional under recent non-tax Supreme Court case law. Our brief parallels the reasoning of the Wagner court. Here’s a link to our amicus brief. We have discussed Pfizer and its various issues in posts here, here, here, and here.

As we noted in our Pfizer brief, some Circuits have previously held the filing deadline in section 6532(a) to be jurisdictional. But they did so at a time before the Supreme Court in 2004 narrowed the use of the word “jurisdictional” generally to exclude filing deadlines and other “claims processing” rules. Compare Kaffenberger v. United States, 314 F.3d 944, 950-951 (8th Cir. 2003) (deadline jurisdictional); Marcinkowsky v. United States, 206 F.3d 1419, 1421-1422 (Fed. Cir. 2000) (same); RHI Holdings, Inc. v. United States, 142 F.3d 1459 (Fed. Cir. 1998) (same); with Miller v. United States, 500 F.2d 1007 (2d Cir. 1974) (deadline subject to estoppel). The Wagner opinion did not mention any of the pre-2004 Circuit court precedent, but decided the issue purely based on the recent Supreme Court case law that Volpicelli applied to section 6532(c) in 2015. Indeed, I think Wagner is the first opinion of any court to grapple, beyond speculation, with the impact of the recent Supreme Court case law on the nature of the section 6532(a) deadline. Certainly, no court of appeals has yet done so. Maybe the Second Circuit in Pfizer will be the first?

 

Litigating Innocent Spouse Cases in District Court – Does the Department of Justice Tax Division Trial Section Talk to Its Appellate Section?

Jurisdiction is not something that the Department of Justice can confer upon the courts, but it is interesting when one part of the Tax Division files motions to dismiss cases for lack of jurisdiction for seeking a refund based on innocent spouse relief while another part argues to appellate courts that a party seeking a refund based on innocent spouse relief could do so in district court. The recent decision in Chandler v. United States, 122 AFTR 2d 2018-XXXX, (N.D. Tex. Sept. 17, 2018) highlights the division between sections at the Department of Justice. The decision in the Chandler case was written by the magistrate to whom the case was referred.  The District Court judge has since issue an order adopting the decision and a judgment.  Since the Chandler case could now move from one section to the other if an appeal occurs, the Appellate Section might get the chance to let the court know it disagrees with the Trial Section. [The case of Hockin v. United States (PACER login required), Civil No. 3:17-CV-1926-PK, pending in the District of Oregon raises the same issue and the Federal Tax Clinic at the Legal Services Center of Harvard Law School may file an amicus brief in that case.] read more...

Ms. Chandler filed a joint return with her then husband for the tax years 1997 through 2002. The IRS made adjustments to the returns and ultimately additional assessments. In 2011 Ms. Chandler, now divorced from her husband with whom she filed the joint returns, requested innocent spouse relief claiming, inter alia, that she did not know exactly what was on the returns and had simply signed them in the appropriate box when the returns were placed in front of her after preparation by an accounting firm.

The IRS denied her relief and she failed to file a Tax Court petition within 90 days thereafter. She then filed another request for innocent spouse relief and the IRS considered her new request before denying it as well. Her attorney tried three more times with the IRS denying each attempt for lack of new information.

In June of 2013 she received a CDP notice and timely made a CDP request. The IRS denied her relief in the CDP process and thereafter began collecting from her. It collected $22,890 through levy before writing off the balance based on the statute of limitations. In July 2015 she filed a claim for refund seeking return of the levied money. The IRS denied the claim and she brought suit in the Northern District of Texas to recover her refund.

The government filed a motion to dismiss for lack of jurisdiction. The magistrate judge determined that the court did not have jurisdiction, citing United States v. Elman, 110 AFTR 2d 2012-6993 (N.D. Ill. 2012) which stated “although the statute itself does not address whether the Tax Court’s jurisdiction is exclusive, courts interpreting the statute have concluded that it is.” This quote, in part, refers to the language in IRC § 6015(e) providing for Andrews v. United States Tax Court jurisdiction which makes no mention of district court jurisdiction. The magistrate judge went on to cite the cases of United States v. LeBeau, 109 AFTR 2d 2012-1369 (S.D. Cal. 2012) and Andrews v. United States, 69 F. Supp. 2d 972, 978 (N.D. Ohio 1999) which held that district courts did not have jurisdiction to decide an innocent spouse issue unless the taxpayer files a refund suit while an innocent spouse case is pending in the Tax Court. Here, the taxpayer missed her chance to bring a Tax Court case. The court also cited United States v. Stein, 116 AFTR 2d 2015-6504 (W.D. Ky. 2015) holding “no part of § 6015 confers jurisdiction to the federal district courts to determine innocent spouse claims in the first instance.”

This seems like a lot of precedent in favor of dismissing the case; however, none of the district court opinions on which the court in Chandler relied involve refund lawsuits, nor does the court cite the three opinions, discussed below, where refund suits proceeded under § 6015 without objection by the DOJ as to jurisdiction.  The cited cases all involve § 6015 raised as a defense in a suit brought by the government for collection. Further, no Circuit court has yet weighed in on this jurisdictional issue either in the context of refund suits or of collection suits.

For decades, the courts have allowed district court and Court of Federal Claims refund suits considering relief under § 6015 and its predecessor innocent spouse provision without discussion or government objection. In enacting and amending § 6015, Congress expressed its understanding that district court refund suits raising innocent spouse relief were permitted under former § 6013(e). Congress did not repeal this prior law by implication when, in 1998, it added new, additional ways to raise innocent spouse relief in the Tax Court under §§ 6015(e)(1)(A), 6320, and 6330.

Several cases held that former § 6013(e)(1) relief, the code section for innocent spouse relief from 1971 to 1998, could be raised by a taxpayer who paid an assessed deficiency in full and brought a refund suit in district court or the Court of Federal Claims. These cases existed in several circuits: Yuen v. United States, 825 F.2d 244 (9th Cir. 1987); Busse v. United States, 542 F.2d 421, 425-427 (7th Cir. 1976); Sanders v. United States, 509 F.2d 162 (5th Cir. 1975); Dakil v. United States, 496 F.2d 431 (10th Cir. 1974); Mlay v. IRS, 168 F. Supp. 2d 781 (S.D. Ohio 2001). In research for an amicus brief on this issue, the tax clinic at Harvard could not find that any party ever argued that such a suit was barred because the taxes were not “erroneously or illegally assessed or collected”, within the meanings of § 7422(a) and 28 U.S.C. § 1346(a)(1).

Several cases have also held that taxpayers claiming innocent spouse status under former § 6013(e)(1) could raise that status as a defense to reduce tax assessments to judgment under § 7402 in district court suits brought by the United States; United States v. Grable, 946 F.2d 896 (6th Cir. 1991); United States v. Diehl, 460 F. Supp. 1282 (S.D. Tex. 1976), aff’d per curiam, 586 F.2d 1080 (unpublished opinion) (5th Cir. 1978); or to foreclose on tax liens under § 7403. United States v. Shanbaum, 10 F.3d 305 (5th Cir. 1994); United States v. Hoffmann, 1993 U.S. Dist. LEXIS 15872 (D. Utah 1993). They also held that former § 6013(e)(1) relief could be raised in a bankruptcy proceeding. In re Hopkins, 146 F.3d 729 (9th Cir. 1998); In re Lilly, 76 F.3d 568 (4th Cir. 1996).

In the 1998 legislation in which the new IRC § 6015 was enacted, the Ways and Means Committee explained:

The proper forum [under present law] for contesting a denial by the Secretary of innocent spouse relief is determined by whether an underpayment is asserted or the taxpayer is seeking a refund of overpaid taxes. Accordingly, the Tax Court may not have jurisdiction to review all determinations of innocent spouse relief . . . . The Committee is concerned that the innocent spouse provisions of present law are inadequate. . . . The bill generally makes innocent spouse status easier to obtain. The bill eliminates all of the understatement thresholds and requires only that the understatement of tax be attributable to an erroneous (and not just a grossly erroneous) item of the other spouse. . . . The bill specifically provides that the Tax Court has jurisdiction to review any denial (or failure to rule) by the Secretary regarding an application for innocent spouse relief. The Tax Court may order refunds as appropriate where it determines the spouse qualifies for relief . . . .

Rep. 105-364 (Part 1), at 61 (emphasis added).

In the first two quoted sentences above, Congress implicitly acknowledged that it understood that § 6013(e) issues could be raised in refund suits in district courts or the Court of Federal Claims brought under 28 U.S.C. § 1346(a)(1) and nowhere did it state in its Committee reports that it intended to remove the jurisdiction of those courts to hear innocent spouse refund suits.

The transfer provision now at § 6015(e)(3) also provides support for the conclusion that district courts have refund jurisdiction over innocent spouse cases. The only jurisdictional basis of a “suit for refund . . . begun by either individual filing the joint return pursuant to section 6532” (i.e., the suit to which the Tax Court proceeding would be transferred) is 28 U.S.C. § 1346(a)(1). Even if language in § 7422(a) and 28 U.S.C. § 1346(a)(1) might arguably not cover innocent spouse relief under the government’s reading, Congress clearly legislated in 1998 on the assumption that refund suits raising innocent spouse relief had been proceeding under the 1971 legislation and should continue to proceed under the 1998 legislation. The language of § 7422(a) and 28 U.S.C. § 1346(a)(1) should be given a practical construction regarding innocent spouse relief in accordance with Congress’s clear intentions.

At least three cases since the enactment of § 6015 have moved forward in district court with no finding of a jurisdictional bar. In Jones v. United States, 322 F. Supp. 2d 1025 (D.N.D. 2004) – a refund suit predicated originally on former § 6013(e) relief – during the course of the case, Congress enacted § 6015, and thereafter, the taxpayer filed a Form 8857 requesting § 6015 relief and sought a refund under the new provision for some taxable years. There is no evidence in the opinion that the government made the claim that it makes here that the district court lacked jurisdiction to conduct a refund suit under § 6015 in the absence of a petition to the Tax Court under § 6015(e). Probably for that reason, the court does not even discuss this potential jurisdictional issue.

In Favret v. United States, 2003 U.S. Dist. LEXIS 21969 (E.D. La. 2003), the court denied a government motion to dismiss an innocent spouse refund suit for failure to state a claim (i.e., a motion on the merits). The case later settled. There is again no evidence in the opinion that the government made any claim that the court lacked jurisdiction of § 6015 refund suits in the absence of a prior petition to the Tax Court under § 6015(e).

In Flores v. United States, 51 Fed. Cl. 49 (2001), the Court of Federal Claims heard a refund suit where the taxpayer sought relief under § 6015(f). The court found the taxpayer entitled to relief. In a footnote, the court indicated that it had considered whether it had jurisdiction to so hold and explained (rather summarily) that both the government thought so and the court did, as well. The court wrote:

The court initially was concerned with whether it had jurisdiction to review a determination made by the Secretary of the Treasury not to render innocent spouse relief under section 6015(f) of the Code (discussed, infra). In their supplemental memoranda, both parties argue that this court has such jurisdiction, directing this court to the legislative history of section 6015, the cases construing that legislative history, and the amendments made to section 6015 by section 1(a)(7) of the Consolidated Appropriations Act of 2001, Pub. L. No. 106-554, 114 Stat. 2763. Based on its review of these materials, the court now agrees that it has jurisdiction to review whether the Commissioner has abused his discretion under section 6015(f), as well as to determine whether that subsection is applicable to plaintiff under the effective date provisions of the Act. See, e.g., Butler v. Commissioner, 114 T.C. 276, 290 (2000) (concluding that Congress did not intend to commit the determination under section 6015(f) to unreviewable agency discretion).

So, in a few instances, refund suits involving § 6015 have been allowed to proceed in the absence of a petition to the Tax Court under § 6015(e).

IRS National Taxpayer Advocate (“NTA”) Nina Olson agrees with the position that district courts can hear refund claims based on innocent spouse status. Since 2007, Ms. Olson has been alerting Congress to the incorrect district court rulings under § 7402 and § 7403. NTA 2007 Annual Report to Congress, Vol. I, p. 631; NTA 2008 Annual Report to Congress, Vol. I, p. 525; NTA 2009 Annual Report to Congress, Vol. I , pp. 494-495; NTA 2010 Annual Report to Congress, Vol. I, pp. 504-505; NTA 2012 Annual Report to Congress, Vol. I., pp. 648, 652; NTA 2015 Annual Report to Congress, Vol. I, pp. 532-536. In her 2013 report, Ms. Olson wrote:

As the National Taxpayer Advocate has pointed out, these district court decisions are inconsistent with the statutory language of IRC § 6015, which does not give the Tax Court exclusive jurisdiction to determine innocent spouse claims, but rather confers Tax Court jurisdiction “in addition to any other remedy provided by law.” Nothing in IRC § 6015 prevents a district court from determining, in a collection suit, whether innocent spouse relief is available. . . . Moreover, the refusal to allow a taxpayer to raise IRC § 6015 as a defense in a collection suit may create hardship because a taxpayer may be left without a forum in which to raise IRC § 6015 as a defense before losing her home to foreclosure by the IRS.

NTA 2013 Annual Report to Congress, Vol. I, pp. 416-417. Ms. Olson has asked that, if the courts do not correct their rulings, Congress adopt legislation that would make it even more clear that § 6015 relief is available as a defense in a district court collection suit. NTA 2007 Annual Report to Congress, Vol. I, pp. 549-550; NTA 2009 Annual Report to Congress, Vol. I, pp. 378-380; NTA 2010 Annual Report to Congress, Vol. I, p. 378-382; NTA 2017 Annual Report to Congress, Purple Book, p. 53.

In a series of recent court of appeals cases brought by the tax clinic at Harvard, the Clinic has represented taxpayers who had filed late pro se stand-alone petitions in the Tax Court under § 6015(e)(1)(A) seeking relief under § 6015(b), (c), and/or (f). In each case, the IRS misled the taxpayer with respect to the last date to file such petition. The Tax Court dismissed the petitions for lack of jurisdiction as untimely. In each case, the Department of Justice (“DOJ”) Tax Division Appellate Section attorneys assured the courts, both in their briefs and at oral argument, that the courts should not worry that the taxpayers were left without a remedy because each taxpayer could pay the liability in full and sue for a refund in district court or the Court of Federal Claims, where each could still seek relief under § 6015. For example, at page 48 of its appellee’s brief in the Nauflett case, the Appellate Section attorneys wrote:

We note, however, that this does not mean that taxpayers who miss the deadline in § 6015(e)(1)(A) may never seek judicial review of the IRS’s determination that they are not entitled to innocent-spouse relief. As the Tax Court recognized (A. 29-30), a taxpayer like Nauflett who misses the 90-day filing window may nevertheless pay any assessment made by the IRS, file a timely administrative claim for refund, and then file a refund suit in either a federal district court or the Court of Federal Claims six months later (or earlier, if the refund claim is denied before the expiration of that six-month period). See I.R.C. §§ 6511(a), 6532(a)(1), 7422(a); see also id. § 6015(e)(3) (stating that jurisdiction over any pending petition for relief under § 6015 is transferred from the Tax Court to any district court that acquires jurisdiction over the relevant years as part of a refund suit filed by either spouse pursuant to I.R.C. § 6532).

At oral argument in the Matuszak and Nauflett cases, the tax clinic at Harvard pointed out that the taxpayers could not afford to fully pay all asserted liabilities for all years before filing district court refund suits, so the alternative remedy of a suggested refund suit was of little practical use to them. Doubtless for this impracticality reason, at footnote 5 of Matuszak, the court wrote:

Although the Tax Court lacks jurisdiction to review an untimely petition for innocent spouse relief, taxpayers who miss the ninety‐day deadline in § 6015(e)(1)(A) may have other means, outside the Tax Court, to seek review of the IRS’s determination. See Appellee’s Br. 47 (suggesting that a taxpayer may pay the assessed deficiency and then seek review of the IRS’s denial of innocent spouse relief in a refund suit in federal district court or the Federal Court of Claims). We express no opinion on the availability of those alternative remedies in this case. [Emphasis added.]

The argument by the Trial Section attorney in Chandler directly contradicts what the DOJ Tax Division Appellate Section has recently argued in the cases of the clients of the tax clinic at Harvard. The government should get its story straight. The Appellate Section is right and the Trial Section is wrong. The court in Chandler gets it wrong because of the argument made by the Trial Section. The Tax Division should come to the court and get its position straight.

 

 

 

Tax Court Reiterates That It Lacks Refund Jurisdiction in Collection Due Process Cases

In McLane v. Commissioner, TC Memo 2018-149, the Tax Court followed its prior precedent in Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006) holding that it lacked jurisdiction in a Collection Due Process (CDP) case to grant petitioner a refund. Carl Smith blogged about the issue here when the McLane case was pending and he earlier blogged about the issue here when the DC Circuit affirmed the outcome in Greene-Thapedi in its holding in Willson v. Commissioner, 2015 U.S. App. LEXIS 19389 (Nov. 6, 2015). We have discussed other cases with this issue such as VK&S Industries v. Commissioner; ASG Services, LLC v. Commissioner; and Allied Adjustment Services v Commissioner (see post here) in which the court issued a designated order rather than an opinion. These cases serve as another reminder of the importance of orders, and particularly designated orders as a source of substantive rulings from the Tax Court even if these orders do not have precedential value.

Carl assisted the University of the District of Columbia Tax Clinic in filing an amicus brief in the McLane case. A link to the amicus brief, substantially written by Jacqueline Lainez’s student at UDC Roxy Araghi is here. A copy of the taxpayer’s brief and the IRS brief are here and here, respectively. The outcome is disappointing but not surprising given the prior precedent. In the opinion Judge Halpern provides a detailed explanation regarding why the Tax Court should not exercise jurisdiction to grant refunds in CDP cases but does not change the reasoning or outcome of Greene-Thapedi which is no doubt why the Tax Court marked this as a memorandum opinion.

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On October 19, 2009, Mr. McLane timely filed his 2008 income tax return pursuant to a 6-month extension to file and the mailing rules of section 7502. The return showed a balance due, and so he paid $957 toward that balance between December 2009 and October 2010 and another $800 between October 2010 and October 2012.   In August 2012, the IRS mailed a notice of deficiency to Mr. McLane disallowing various Schedule C deductions and seeking a deficiency with respect to his 2008 taxes. But, he never got the notice of deficiency. Some of the $800 had been paid after the IRS mailed the notice of deficiency. The IRS later filed a notice of federal tax lien (NFTL) against him, and he sought a CDP hearing in which he contended that the assessment was invalid because no notice of deficiency had been mailed. He also argued in the hearing that he could prove sufficient deductions, but he did not ask for a refund of any amount that he had paid.

Mr. McLane did not get satisfaction at Appeals, so he petitioned the Tax Court. The Tax Court concluded that a notice of deficiency had been properly mailed, but he simply had not received it. After a remand to Appeals, a trial was had in the Tax Court in September 2016, and post-trial briefs were later filed. The failure to receive the notice of deficiency allowed the Tax Court to decide de novo his challenge to the underlying tax liability set out therein. Neither in his pretrial nor post-trial briefs did Mr. McLane seek a refund. Before the Tax Court’s ruling on the merits, the IRS later conceded that, for the 2008 tax year, Mr. McLane had proved enough business expenses at trial to not only fully eliminate any deficiency and abate the NFTL, but to also produce an overpayment. In a conference call among the parties and Judge Halpern in February 2018, Mr. McLane first asked for a refund of the overpayment that the IRS now conceded had occurred.

In an order issued on March 13, 2018 — one that did not mention Greene-Thapedi — Judge Halpern asked for memoranda of law from the parties on whether he had jurisdiction to find an overpayment under these facts. UDC filed an amicus memorandum, as well.

In Greene-Thapedi the Tax Court reviewed a CDP case where the IRS had been trying to collect a deficiency arising from a stipulated decision of the Tax Court in an earlier deficiency case involving 1992 income taxes. The dispute in the CDP hearing was only over the amount of interest charged on the stipulated deficiency. But, the IRS offset an overpayment of taxpayer’s 1999 liability to fully pay the 1992 liability pending before the court in the CDP matter. The taxpayer in that CDP case then sought a refund of interest accrued before the notice of intent to levy. The court found that the dispute over the interest was a challenge to the underlying liability, but once the levy became moot by virtue of the offset of the 1999 liability the opportunity to challenge the liability vanished together with any claim for refund. The court also noted in the case that IRC 6330 does not expressly give the Tax Court jurisdiction to determine overpayments and to order refunds. The case contains no discussion of whether the refund claim was timely filed under section 6512(b)(3), which gives the Tax Court the power to find an overpayment under its deficiency jurisdiction under several scenarios.

In the Greene-Thapedi opinion at footnote 19 the Tax Court mentioned the possibility that although not present in that case the determination of an overpayment might be “necessary for a correct and complete determination of whether the proposed collection action should proceed.” Thus, the court gave Mr. McLane some hope that his case might fit within the exception mentioned by the court as a possibility. Both Mr. McLane and the amicus also argued that the Greene-Thapedi case was legally distinguishable, since it involved a dispute over interest on a deficiency that had already been stipulated, whereas the McLane CDP case was the first time the merits of the deficiency were being litigated. Both memoranda argued that a taxpayer who had not received a notice of deficiency should be put in the same position in a CDP challenge to that liability in Tax Court as he would have been had he received the notice of deficiency. The amicus pointed out that one could still apply the Tax Court’s overpayment jurisdiction rules of section 6512(b)(3) by limiting the amount of the refund to both (1) the amount paid in the 3-year (plus extension) period before the notice of deficiency was mailed (a deemed paid claim) and (2) the amount paid after the notice of deficiency. The $957 and $800 payments would fall within those descriptions. Another factor giving Mr. McLane some hope was the dissenting opinion of Judge Vasquez in Greene-Thapedi which invoked the need to broadly construe the court’s jurisdiction because of the remedial nature of CDP. Judge Vasquez also pointed out that the decision created a trap for the unwary:

Taxpayers who choose to litigate their section 6015 [innocent spouse] and section 6404 claims as part of a section 6330 proceeding cannot obtain decisions of an overpayment or refund in Tax Court. If those same taxpayers had made claims for section 6015 relief or interest abatement in a non-section 6330 proceeding, we could enter a decision for an overpayment and could order a refund.

In McLane the court acknowledges that it must revisit Greene-Thapedi to determine if it has overpayment jurisdiction on the facts presented here; however, it concludes that it has no reason to depart from the earlier precedent.

In response to the narrow argument that Mr. McLane and UDC made that the Tax Court has overpayment jurisdiction in a Tax Court case only where the underlying tax liability is at issue because of “the non-receipt of a mailed notice of deficiency,” the court states that:

We see no reason why the issuance of a notice of deficiency that petitioner never received should allow him to pursue a claim for refund that would otherwise have become time barred long before he manifested any awareness of it.

The court reasons that he had plenty of time to notice that he had more expenses than he originally claimed on his 2008 return and he did not act to raise a refund claim until a conference call with the parties in the CDP litigation in February of 2018. By 2018, the normal statute of limitations to file a claim for refund had long since passed. The court expresses concern that providing refund jurisdiction in this context would allow a taxpayer to make an end run around the refund time frames established in the Code. It is unclear how much this late request for a refund may have impacted the outcome of the case. The court does not directly address the argument made by UDC that section 6512(b)(3)’s overpayment jurisdiction filing deadlines (which cover payments made in periods both before and after the notice of deficiency was mailed) could be treated as obviating the need for any amended return in order to seek a refund in the Tax Court CDP case.

The court provides an extensive discussion regarding the arguments of the amicus brief which follow closely the arguments made by Judge Vasquez in his dissent in Greene-Thapedi and the court pushes back on each one of those arguments. I will not repeat them here but I came away with the impression that the length of the opinion may have been influenced by the desire to take this opportunity to refute Judge Vasquez’s dissent in more detail than was done in the majority opinion in Greene-Thapedi and perhaps was done with an eye toward the possible appeal of the McLane case. Of the appellate courts, only the D.C. Circuit (in Willson, a case also with unusual facts not involving a challenge to the underlying liability) has ever discussed or followed Greene-Thapedi. McLane could appeal his case to the Fourth Circuit. In any event several pages of the opinion explain in detail why none of the issues raised by Judge Vasquez provide a basis for Tax Court jurisdiction.

For anyone interested in fighting this issue, the opinion provides a detailed roadmap of what the court thinks of the arguments made to this point. While it appeared that Greene-Thapedi may have left a crack in the door for a taxpayer to come in with different facts and succeed in obtaining a refund in a CDP case, the McLane decision signals that the crack is closed. Any success on this issue must come from persuading a circuit court to interpret the statute differently or for Congress to make clear that its jurisdictional grant goes further than it currently appears to do.

 

 

How Do Section 6511(b)’s Payment Limitations Apply When a Late-Filed Original Return Perfects a Prior Informal Refund Claim?

We welcome back frequent guest blogger Carl Smith who writes today about a potential issue not reached by the court.  Whether the taxpayer will seek to raise the issue in a request for reconsideration or attempt to raise it on appeal remains to be seen.  Keith

I don’t usually do posts on opinions where an interesting issue is presented, but the court didn’t reach the issue, and I don’t know how the issue should come out.  But, when I mentioned the issue in this post to Les, and asked whether Saltzman & Book answered the issue, and Les told me that the book did not and that he thought the issue was “fascinating,” I decided:  Why not do a post?

The potential issue is presented in Voulgaris v. United States, 2018 U.S. Dist. LEXIS 150724 (E.D. Mich. Sep. 5, 2018), a refund suit that was dismissed for lack of jurisdiction because the administrative claim, although timely made under section 6511(a), was limited by section 6511(b) to zero because the taxpayer had not made any tax payments in the 3-year period looking back from the date the claim was made through the filing of a late original return.

The court does not discuss the informal claim doctrine, which was not raised by the taxpayer’s counsel or mentioned in the government’s motion to dismiss.  However, taken from the government’s summary of the facts, the court includes in its opinion facts demonstrating that the taxpayer had made an informal claim long before that claim was perfected by the filing of a late original return showing the overpayment.  The Supreme Court held in United States v. Kales, 314 U.S. 186 (1941), that where an informal claim is later perfected, the perfected claim is treated as made on the date of the informal claim for purposes of what is today section 6511(a).  But, Kales doesn’t answer the question of what is the limit under section 6511(b) of the amount of the claim when a claim is deemed timely filed under the informal claim doctrine.  Section 6511(b) says that if a claim is filed within three years after the filing of the original return (one of the alternative requirements of subsection (a)), then the claim is limited to the amount of any tax paid in the 3-year period prior to the filing of the claim (plus the period of any extension to file the original return).  Section 6511(b), though, also provides that if a taxpayer is relying on the 2-years-after-payment rule of subsection (a) to make a refund claim timely, then the section 6511(b) amount limit is to the taxes paid in the 2-year period prior to filing the claim.  In Kales, whether the lookback period was two years or three years from the filing of the claim, the amount was not limited because the amount of the tax in dispute had been paid on the very day the informal claim was filed.

If the taxpayer in Voulgaris had raised the informal claim doctrine, should the court have used the 2-year or 3-year lookback rules from the date of the informal claim for purposes of applying the tax payment amount rules of 6511(b)?  Is the late-filed return treated as filed on the date of the informal claim so that the 3-year lookback rule applies from the informal claim date?  If so, the refund amount sought was paid within that lookback period.  However, if the 2-year lookback rule applied, the refund claim would be limited to zero.

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Here are the facts of Voulgaris, which involves a refund claim for overpaid 2003 income taxes. The taxpayer, a foreigner, was a grad student during 2001 at the University of Michigan.  While studying, he set up a bank account in the U.S, in which he kept a fair amount of money.  In 2003, I am not sure if he was in the U.S. (probably not, from the court’s finding that he went back to Europe after 2001), but he bought and sold stocks through a (probably U.S-based) Scottrade account.  He did not file a timely U.S. 2003 income tax return.

The IRS later sent a notice of deficiency for 2003 income taxes to the taxpayer at some address (probably in the U.S.) in which the IRS computed his tax based on gross sales proceeds of $77,000 reported on Forms 1099-Bs.  The computation did not include any basis information.

Voulgaris never received the notice of deficiency, so, of course, he did not go to Tax Court and the deficiency was later assessed.

In 2009, the IRS issued a notice of intention to levy to Voulgaris, which he also did not receive.  So, of course, he did not request a Collection Due Process hearing.

The IRS then levied on Voulgaris’ U.S. bank account, and on Feb. 24, 2010, the IRS received $28,000 from the bank.  That amount apparently fully paid the liability.

On Feb. 10, 2013 (i.e., more than two years, but less than three years after the levy payment), the IRS received a letter from Voulgaris seeking a complete refund and including “Schedule D, Schedule D-1, and a Composite Substitute 1099 showing his Scottrade stock transactions,” but not an original Form 1040 for 2003.  The Schedule D showed that, when basis information was included, Voulgaris’ 2003 stock transactions actually had resulted in a net capital loss of about $5,000.  There is no mention in the opinion of Voulgaris having any other U.S.-source income in 2003.

The IRS responded to this letter by asking Voulgaris to file a complete Form 1040 for 2003.  After much back and forth, on Aug. 19, 2015, the IRS finally received from Voulgaris a Form 1040, which it processed.  The return sought a refund.  But, the IRS denied the refund, and the taxpayer brought a timely suit.

The court correctly observes that the claim is timely under 6511(a) because made on the original return.  Given that timely claim, the lookback period under 6511(b) was three years, not two, from the time the return was filed.  Since the tax was paid on Feb. 24, 2010 – more than three years before the return was filed – the court holds that the amount of the claim must be limited to zero.  But, is this right?

Wasn’t the Feb. 10, 2013 letter an informal claim that just later got perfected?  The court does not discuss the informal claim doctrine, since Voulgaris’ lawyer did not argue that he had made an informal claim prior to the filing of the Form 1040.  If the Feb. 10, 2013 letter in fact constituted an informal claim, that claim would come with a lookback period.  Is the lookback period two years (in which case, the claim would be limited to zero) or three years (in which case the claim could encompass the entire amount paid by levy on Feb. 24, 2010)?

I have never run across this fact pattern and haven’t done research on it.  I suspect that there is no case law on this informal claim issue because only in the last 20 years have all the courts come around to the idea that a late return showing an overpayment gets the 3-year lookback period under (b) because the claim shown on that return is timely under (a) (having been made within three years after the return was filed – indeed, on the same day).  See Baral v. United States, 528 U.S. 431, 433 (2000) (in the case of a return filed more than three years after the due date, the IRS “did not dispute that Baral had timely filed the request under the relevant filing deadline – “within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later.’ § 6511(a)”); Omohundro v. United States, 300 F.3d 1065 (9th Cir. 2002) (overruling Miller v. United States, 38 F.3d 473 (9th Cir. 1994), which had held that the 2-year lookback period applied when a late original return was filed showing an overpayment); Rev. Rul. 76-511, 1976-2 C.B. 428.

Les tells me that Saltzman & Book does not address the issue of how the section 6511(b) amount limits apply when an informal claim is filed before a late original return showing an overpayment is filed.  And he doesn’t know whether there is case law on this question, either.  Both of us are inclined to think that, on these facts, the return is deemed filed on the date of the informal claim, so, logically, the 3-year lookback period from the date of the informal claim should apply.  But, I would not bet my shirt on it.  If any reader of PT has encountered authority on this issue, I would urge you to help us all out by citing pertinent authority in the comments section to this post.

 

 

Who Owns A Refund? Consolidated Returns and Bankruptcy Add Wrinkles to Refund Dispute

In re United Western Bancorp is an opinion out of the Tenth Circuit Court of Appeals from earlier this year that raises a procedural issue I had not considered: in the consolidated return context who is the true owner of a refund when a refund is wholly attributable to a subsidiary’s net operating losses? Normally, that is not an issue that generates disputes, because affiliated companies have overlapping interests in the refund. In re United Western Bancorp presents facts where this became an issue, because the parent company, UWBI, a bank holding company, filed a petition for Chapter 11 bankruptcy after the Office of Thrift Supervision closed the United Western Bank, the subsidiary/bank of UWBI, and appointed the FDIC as receiver.

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In 2011, after the FDIC came in as receiver, but before the bankruptcy, UWBI filed a refund claim of about $5 million for 2008 due to a carryback of the $35 million that the subsidiary/bank lost in 2010. The IRS had not acted on the refund claim when the parent sought bankruptcy protection.  The FDIC, as receiver for the insolvent subsidiary bank, filed a proof of claim in the UWBI’s bankruptcy case, alleging in main part that the refund stemmed exclusively from the subsidiary bank carrybacks and that it was the true owner of the refund. The IRS granted the refund claim but representatives from UWBI and the bank/subsidiary fought over who should be deemed to own the refund.

The trustee in UWBI’s bankruptcy case initiated an adversary proceeding with the bankruptcy court, which agreed with the trustee and held that the refund was part of UWBI’s bankruptcy estate. The district court reversed and found that the subsidiary bank was the rightful owner of the refund, and the trustee appealed to the Tenth Circuit.

The dispute came down to the issue of whether the refund was part of the parent’s bankruptcy estate under 11 USC § 541(a)(1) which includes “all legal or equitable interests of the debtor in property as of the commencement of the [bankruptcy] case.” 11 USC § 541(d), however carves out from the debtor’s estate property which the debtor only has legal title and not an equitable interest.

The Tenth Circuit in resolving the dispute first looked to the consolidated return rules, an area that I have not had the pleasure of studying since my days in big firm practice in New York. The opinion notes that the consolidated return statute and regs  are silent with respect to legal and equitable ownership of refunds. The opinion notes that federal common law presents a framework for resolving the dispute, looking to the Tenth Circuit in Barnes v Harris, 783 F.3d 1185 (10th Cir. 2015), which itself relied on a 1973 Ninth Circuit opinion In re Bob Richards Plymouth-Chrysler. Barnes v Harris held that “a tax refund due from a joint return generally belongs to the company responsible for the losses that form the basis of the refund.” The Ninth Circuit, in Bob Richards, which also involved a dispute as to the ownership of a refund arising from a bankruptcy within a consolidated group, came up with what the Tenth Circuit refers to as the “Bob Richards Rule”:

Absent any differing agreement we feel that a tax refund resulting solely from offsetting the losses of one member of a consolidated filing group against the income of that same member in a prior or subsequent year should inure to the benefit of that member. Allowing the parent to keep any refunds arising solely from a subsidiary’s losses simply because the parent and subsidiary chose a procedural device to facilitate their income tax reporting unjustly enriches the parent.

Complicating the analysis in In Re United Western Bancorp was that the parent and subsidiary corporation had in fact entered into a tax allocation agreement. The opinion takes a deep dive into the tax allocation agreement that the bank and parent had entered into, and it found that the agreement was ambiguous as to whether it intended to create an agency relationship between the parent holding company and sub/bank, which would in turn vest legal and equitable ownership in refund to the sub/bank, or something akin to a debtor-creditor relationship, which would leave the subsidiary bank only with an unsecured claim against the parent in the amount of the refund that the parent received.

The deep dive that the opinion reveals that the tax allocation agreement is not clear; some parts suggest that it reflects an agency/principal relationship between the parent and sub and other parts point more to a debtor/creditor relationship:

On the one hand, portions of the Agreement quite clearly indicate the intent to create an agency relationship between UWBI [parent] and its regulated, first-tier affiliates. For example, Section A.2 states that “each first-tier subsidiary [is to] be treated as a separate taxpayer with UWBI merely being an intermediary between an Affiliate and the” IRS. Likewise, Section G states that UWBI is being appointed by each affiliate to act as its agent for purposes of filing the consolidated tax return and taking any action in connection therewith. On the other hand, portions of the Agreement arguably suggest the intent for UWBI to retain tax refunds before forwarding them on to regulated, first-tier affiliates. For example, parts of Section A.1 imply that UWBI will retain tax refunds and then later take them into account during the annual settlement process. In addition, the fact that Section A.1 affords UWBI with discretion regarding the amount to refund a regulated, first-tier affiliate (i.e, the exact amount of the refund or a greater amount) seems to suggest something other than an agency relationship. Finally, the ambiguity of the Agreement on this issue is compounded by the fact that it contains no language requiring UWBI to utilize a trust or escrow for tax refunds—which would suggest the existence of an agency or trust relationship—nor does it contain provisions for interest and collateral—which would be indicative of a debtor-creditor relationship.

The agreement does provide however that any ambiguity is to be resolved “with a view to effectuating such intent [i.e., to provide an equitable allocation of the tax liability of the Group among UWBI and the Affiliates], in favor of any insured depository institution.” (emphasis added). In light of that mechanism for resolving the ambiguity  the Tenth Circuit concluded  that it is appropriate to consider the agreement as creating an agency relationship between the parent and sub, with the result that it considered the agreement as not displacing the general rule outlined in Bob Richards and Barnes. By concluding that the tax allocation agreement did not displace the Bob Richards rule the court concluded “that the tax refund at issue belongs to the Bank, and that the FDIC, as receiver for the Bank, was entitled to summary judgment in its favor.”

I note one other interesting part of this opinion. In 2014, the Sixth Circuit, in Fed. Deposit Insurance. Corp. v. AmFin Financial Corp explicitly rejected the Bob Richards Rule because it “is a creature of federal common law” and “federal common law constitutes an unusual exercise of lawmaking which should be indulged only in a few restricted instances.” In note 4 of the United Western Bancorp opinion, the Tenth Circuit declined to step into that issue, noting that the Tenth Circuit’s adoption of the Bob Richards Rule in the earlier Barnes case meant that it was bound to follow the circuit’s precedent.

A Counterclaim as an Informal Claim for Refund or as the Starting Date for Calculating the Refund Amount

Last year I wrote about a case in which the 9th Circuit accepted a request for injured spouse relief as an informal claim for refund in a situation in which the taxpayer should have filed a claim for refund. In Appelbaum v. United States, No. 5:12-cv-00186 (W.D.N.C. August 6, 2018) the court found that a counterclaim filed in a lawsuit operated as the time for starting the refund claim even if the counterclaim did not operate as a refund claim itself. Allowing the counterclaim to start the look-back period for measuring payments allows the taxpayer to obtain a larger refund. Treating a document as a type of informal claim for one purpose when it clearly does not work for another purpose bifurcates the refund claim in a manner that I do not recall seeing previously.

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Mr. Appelbaum held a position with Warde Electric Contracting, Inc. that caused the IRS to assess a trust fund recovery penalty (TFRP) against him in 2003 for over $2 million. Once it made the assessment the IRS began taking collection action against him. From the description in the opinion, it seems that Mr. Appelbaum did not affirmatively send payment to the IRS but it offset his refunds and levied on his social security payments.

Almost 10 years after making the assessment, the IRS brought suit against Mr. Appelbaum seeking a judgment of almost $4 million due to the accrual of interest and penalties since the initial assessment. The IRS usually brings such a suit when the statute of limitations is about to run out but it believes that it can collect more by extending the time for collection. I have written before about the unlimited period of time the IRS can obtain to make collection when it has a judgment. Usually, the decision to bring a suit to reduce the liability to judgment is a low cost and low risk maneuver; however, the decision backfires in Mr. Appelbaum’s case.

Representing himself, Mr. Appelbaum argued that the IRS failed to follow the notice requirements of 6672 which, at the time of the assessment against him, were still relatively new. After a bench trial, the court found that the IRS did indeed fail to give Mr. Appelbaum proper notice of the assessment. This meant that the IRS had to abate the assessment against him and because the statute of limitations on assessment of the TFRP had long since passed, it also meant that the IRS could not “fix” its mistake. So, Mr. Appelbaum was completely relieved of the liability. He was, however, not satisfied with simply being relieved of the liability but wanted his money back.

He counterclaimed in the case seeking the money the IRS had taken from his Social Security payments and “any and all payments received by the IRS that have been applied over the years against the Assessments from April 10, 2003 to the present.” The court said that it construed this counterclaim as a claim for refund under 28 U.S.C. 1346(a)(1). The court dismissed the claim for lack of subject matter jurisdiction because Mr. Appelbaum did not first file an administrative claim for refund as required by IRC 7422(a).

Mr. Appelbaum filed correct administrative claims in March of 2016. In August of 2016 the IRS granted him a refund of $19,556.00 of the $43,095.00 it had taken from him over the years. It determined this refund amount by looking to the payments it had recovered within two years prior to the filing of the claim. Mr. Appelbaum administratively appealed the determination arguing that the IRS should grant him refunds from a date two years prior to the time he filed the counterclaim for refund on May 1, 2013. In March of 2017 the IRS increased the refund amount it allowed Mr. Appelbaum to $31,162.00. At issue before the court is whether to compel the IRS to refund the remaining amount of levied Social Security and refund payments not yet returned to Mr. Appelbaum. The court states that the IRS can retain the monies received more than two years before the filing of the claim and notes that equitable tolling does not apply to refund claims citing to United States v. Brockamp, 519 U.S. 347, 354 (1997).

Then the court examined the facts to determine the correct date from which to apply the two year rule. It determined that the answer and counterclaim filed in the suit the IRS brought to reduce the liability to judgment “adequately put the IRS on notice that Defendant believed he was subjected to an erroneous tax exaction and that he desired a refund.” So, the court allowed him to obtain a refund from two years prior to the date of his counterclaim.

The decision to treat the counterclaim as an informal claim for refund after dismissing the counterclaim on jurisdictional grounds presents an interesting extension of the informal claim doctrine. The court did not cite any authority that a jurisdictionally flawed pleading could serve as an informal claim. I agree with the court that the pleading did put the IRS on notice that the taxpayer thought he should receive a refund. Certainly, in that respect it fits the norm for an informal claim but since it was a failed pleading, it also stands outside the norm for most informal claims.

For those seeking to assess the informal claim doctrine, the decision provides another example of something that can serve as an informal claim in one context even if it is a failed claim in another. The court seems to allow the use of the claim as the starting date for the refund only as a result of the “regular” claim for refund filed later. Is the filing of the regular claim for refund a predicate to using a pleading as an informal claim? Is this really an informal claim or an addendum to a formal claim allowing it to move the time period for calculating the refund to an earlier date? The case may raise more questions than it answers. Meanwhile, Mr. Appelbaum goes home very happy that the IRS decided to try to reduce his liability to judgment and the IRS realizes that it did not properly make a risk/reward calculation in this case.

 

Paresky– A Mirror Image of Pfizer

Today we welcome back Bob Probasco. Bob directs the Low-Income Taxpayer Clinic at Texas A&M University School of Law in Fort Worth. In this post Bob discusses the Paresky case in the Court of Federal Claims and follows up on issues he discussed in his post last month on the Pfizer case and the difficult issues arising from suits for overpayment interest. For good measure this terrific post sweeps in Bernie Madoff, equitable tolling and the possibility of some refund suits with no statutes of limitation.  Les

 I wrote a blog post recently on a jurisdictional issue in the Pfizer case, concerning claims for overpayment interest.  The district court for the Southern District of New York denied the government’s first motion to dismiss (based on lack of jurisdiction) but granted its second motion to dismiss (based on expiration of the statute of limitations).  Pfizer appealed and we’re still waiting to hear from the Second Circuit.

In the meantime, the Court of Federal Claims issued its decision on August 15th in the case Paresky v. United States, docket no. 17-1725, another suit for overpayment interest that involved essentially a mirror image of the jurisdiction issue in Pfizer. It also had some other interesting procedural twists and turns.

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Background

Here’s a recap of what the CFC called “[t]wo different, divergent, and conflicting jurisdictional paths . . . proffered by the parties.”  The first jurisdictional path is that set forth in 28 U.S.C. § 1346(a)(1)– district courts and the CFC have concurrent jurisdiction over

Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.

Let’s call this “tax refund jurisdiction,” because that is its primary use – although Pfizer argued about whether that is the only use.

The second jurisdictional path is “Tucker Act jurisdiction” – 28 U.S.C. § 1346(a)(2)for district courts and 28 U.S.C. § 1491(a)(1) for the CFC – which authorizes suits for

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 cases not sounding in tort.

What about statutes of limitation?  There is a general six-year statute of limitations for actions in federal courts – 28 U.S.C. § 2401 or 2501, for district courts and the CFC respectively. The Code also sets forth a statute of limitations.  Specifically, Section 7422 of the Code requires a refund claim be filed first for any suit

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.

And Section 6532 precludes a suit under Section 7422 begun more than 2 years after the IRS mails a notice of disallowance of the claim.

One might infer a link between the jurisdictional grant itself, for “tax refunds” or under the Tucker Act, and the corresponding statute of limitations.  That is, suits brought under the “tax refund” jurisdictional grant would be subject, based on similar language, to Code sections 7422 and 6532. Suits brought under the Tucker Act, however, would be subject to the general six-year statute of limitations for the district courts and the CFC.  However, the plaintiffs in both of these cases argued for a disconnect – either “tax refund” jurisdiction + the general six-year statute of limitations, or Tucker Act jurisdiction + the Code’s refund suit statute of limitations.  And there is actually a footnote in E.W. Scripps Co. v. United States, 420 F.3d 589 (6th Cir. 2005) stating that the similarity of the language in Section 7422 and 28 U.S.C. § 1346(a)(1) doesn’t necessarily mean they are interpreted the same way.

 (Some cases have applied both statutes of limitations to tax refund suits, so the statute of limitations doesn’t remain open indefinitely when the IRS doesn’t issue a notice of disallowance of the claim.  See, e.g., Wagenet v. United States, 104 A.F.T.R.2d (RIA) 2009-7804 (C.D. Cal.). The Court of Claims, on the other hand, held that the six-year statute of limitations doesn’t apply to tax refund suits and allowed a refund suit filed 2 years after the notice of disallowance, which wasn’t issued until 28 years after the original refund claim.  Detroit Trust v. United States, 131 Ct. Cl. 223 (1955).  The IRS agrees with the latter position.  Chief Counsel Notice 2012-012.  But we’re wandering far afield from the issues in Pfizer and Paresky.)

Pfizer– recap

Pfizer brought its suit in district court under tax refund jurisdiction.  Its issue revolved around whether a taxpayer is entitled to overpayment interest when: (a) the IRS issued a refund within 45 days of the claim (when overpayment interest is not required under the exception in Section 6611(e)), (b) the check was not received, and (c) a replacement check was issued more than 45 days after the refund claim.  Pfizer wanted to rely on a favorable Second Circuit precedent on this issue, so it wanted to file in the SDNY rather than the CFC, but Tucker Act jurisdiction for district courts is limited to claims for $10,000 or less.  Thus, Pfizer filed its suit asserting tax refund jurisdiction.

Because Pfizer filed its suit late under the Section 6532 statute of limitations, it argued that its “tax refund suit” was subject instead to the general six-year statute of limitations.  The SDNY agreed that suits for overpayment interest qualified for tax refund jurisdiction, following Scripps.  So the taxpayer won on the government’s first motion to dismiss. But the court concluded tax refund jurisdiction carries with it the Section 6532 statute of limitations.  So the taxpayer lost on the government’s second motion to dismiss.  On appeal, Pfizer continues to argue for tax refund jurisdiction + Tucker Act statute of limitations.

Enter the Pareskys

The Pareskys had a different problem.  They filed their suit in the CFC as a Tucker Act claim.  But in their case, the two-year statute of limitations in Section 6532 was still open although the six-year statute of limitations for Tucker Act claims was not.  Two years is less than six years, but the two different limitation periods began running at different times.  So the Pareskys argued that a Tucker Act claim was nevertheless subject to the statute of limitations for tax refund suits.  Again, they argued for one jurisdictional grant coupled with a statute of limitations apparently applicable to a different jurisdictional grant. As with Pfizer, but in reverse.

The Pareskys’ problems traced back to investments with Bernie Madoff.  They reported substantial income for 2005 through 2007 that turned out to be fictitious.  On their tax return for 2008, they claimed a net operating loss from the Ponzi scheme. Revenue Procedure 2009-20 provides an optional safe harbor method of treating losses from investments in fraudulent schemes. That method precludes double-dipping: taxpayers claim the entire loss in the year the fraud was discovered but cannot file amended returns to exclude the fictitious income (never received) that was reported in taxable years before the discovery year.

The Pareskys did not follow the optional Revenue Procedure method.  Instead, in October 2009, they filed amended returns on Forms 1040X for years 2005 – 2007, to exclude the fictitious income reported in those years. The claimed a loss on their 2008 tax return, when they discovered the fraud.  In December 2009, they filed Form 1045s, claiming tentative carryback refunds under Section 6411for years 2003 – 2007, by carrying back the net operating loss from 2008. But the net operating loss was reduced by the amount of the fictitious income for 2005 – 2007, so there was still no double-dipping.  The overpayment interest claim involves solely the tentative carryback refunds, not the refunds associated with the amended returns on Forms 1040X.

The refunds claimed on Forms 1045 for tentative carrybacks, totaling almost $10 million, were issued in April and May of 2010, just a few months after the Pareskys filed the Forms 1045 in December 2009.  The government paid no interest on those refunds, even though it issued the refunds more than 45 days after it received the Forms 1045, because it argued the applications were not in processible form when originally submitted.  The Pareskys, of course, disagreed.

The IRS examination of the Pareskys’ tax liabilities for 2003 through 2008, trigged by the amended returns, also included the refunds sought on the Forms 1045 as well as the Pareskys’ claim for overpayment interest on the Form 1045 refunds.  The examination continued until October 2011, during which time the parties agreed to an extension of the limitations period. In October 2011, the IRS began preparing a report to the Joint Committee on Taxation (JCT), required under Section 6405 for large refunds.  (Section 6405(a) prohibits the IRS from issuing such large refunds until 30 days after the IRS submits the report to JCT, but that restriction does not apply to refunds made under Section 6411.  Section 6411 provides for only a “limited examination” of the tentative carryback applications before issuing the refund.)  The IRS submitted the report to JCT on January 25, 2013, stating that the refunds sought on the Forms 1045 had been approved.

The Pareskys filed a protest with the IRS on June 6, 2014, concerning the resolution of the examination. Appeals determined, on September 4, 2014, that no overpayment interest was due on the Form 1045 refunds because the refunds were issued within 45 days after the applications were submitted in processible form.  That determination letter instructed the Pareskys to file a formal claim on Form 843 by September 12, 2014, which they did.  The claim was denied on September 24, 2015, and the Pareskys filed their complaint in the CFC on September 15, 2017.

Was it timely? 

The government argued that, under the Tucker Act, the claim accrued in May 2010 and the plaintiffs did not file suit within the six-year statute of limitations.  The plaintiffs asserted three alternative arguments.  First, they argued that the tax refund statute of limitations, rather than the six-year period applicable to Tucker Act claims, applied and began running when their claim was denied on September 24, 2015. Second, they argued that if the six-year limitations period applied, their claim didn’t accrue until the report to JCT on January 25, 2013.  Finally, they argued that under the “accrual suspension rule” the claim doesn’t accrue until the plaintiff is aware of the claim.  The court rejected all three arguments.

The Sixth Circuit in Scripps and the SDNY in the Pfizercase agreed that taxpayers could bring a suit for overpayment interest under the “tax refund jurisdiction” provision.  But the CFC didn’t buy that argument.  There were too many precedents in that court, the Federal Circuit, or the Court of Claims to the contrary.  The Federal Circuit might decide to overrule those, but the CFC would not.

The court also rejected the argument that the suit was filed within the six-year limitations period. The claim accrued when the underlying tax refunds were “scheduled.”  There was an evidentiary dispute regarding when the refunds had been scheduled; the Pareskys therefore argued that the date of the report to JCT was the earliest moment when it was certainthat the refunds had been allowed.  But the government pointed out that the report to JCT has nothing to do with the date a tentative carryback refund is allowed, and the court found the government’s evidence sufficient to establish that the refunds were scheduled in early 2010.

The accrual suspension rule didn’t save the Pareskys either.  The IRS may not have explicitly disclosed to the taxpayers the date that the refunds were scheduled, but they received the refunds and knew they did not include overpayment interest.  Those were the relevant facts that established their claim and the IRS did not conceal those.

Equitable tolling or estoppel?

In both Pfizer and Paresky, the IRS sent the taxpayers a letter stating a different statute of limitations than the court determined applied to their respective situations.  Appeals sent Pfizer a letter stating that the six-year statute of limitations applied, presumably because the claim involved overpayment interest, without addressing the impact of which jurisdictional grant Pfizer would rely on.  The Pareskys received the determination by Appeals concerning their protest and also a denial of their subsequent refund claim, both of which stated the Section 6532 statute of limitations, without addressing potential different treatment for claims involving overpayment interest.

That misinformation certainly seems to provide a potential factual predicate for equitable tolling or estoppel of filing deadlines, but many courts have been resistant to that.  Carl Smith and Keith Fogg are continuing their quest to overcome that resistance including by filing an amicus brief in Pfizer, which I am shamelessly paraphrasing for the following summary.

In brief, statutory deadlines that are “jurisdictional” cannot be waived or extended for equitable reasons.  Unfortunately, as the Supreme Court observed in 2004, courts have been careless in applying that label.  “Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.”  Kontrick v. Ryan, 540 U.S. 443, 455 (2004).  The Supreme Court has also held that time periods in which to act are almost never jurisdictional, unless Congress makes a “clear statement” to that effect.  In particular, if the filing deadline and the jurisdictional grant are not part of the same provision, that likely indicates that the time bar is non-jurisdictional. United States v. Wong, 135 S. Ct. 1625 (2015).

Carl and Keith are arguing in Pfizer that Section 6532’s statute of limitations is not jurisdictional and is subject to estoppel under the standard set forth in recent Supreme Court decisions.  The Supreme Court has never ruled on whether the Section 6532(a) deadline is jurisdictional or subject to estoppel or equitable tolling.  However, before the recent Supreme Court decisions, the Second Circuit applied estoppel to prevent the government from arguing that the filing deadline barred the court from hearing the case.  Miller v. United States, 500 F.2d 1007 (2nd Cir. 1974).  Although some other circuits had disagreed, the Second Circuit could rely on that precedent to estop the government in the Pfizer case.

Theoretically, the same result should apply to the six-year filing deadline in 28 U.S.C. § 2501. Alas, this argument would not work for the taxpayers in the Pareskycase.  The Supreme Court has not ruled on Section 6532’s deadline but it has ruled on 28 U.S.C. § 2501, and concluded that it was jurisdictional and therefore not subject to equitable tolling or estoppel. John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008). However, that was more a matter of stare decisisbecause the Court had called the deadline jurisdictional in a number of opinions over decades.  In the Wongcase, the Court held that the FTCA filing deadline in 28 U.S.C. 2401(b) was non-jurisdictional and subject to equitable tolling, while observing that the John R. Sand & Gravel Co.did not follow the Court’s current thinking because of those precedents.

So – hopefully Carl and Keith will persuade the Second Circuit in Pfizer, as well as other courts in other cases.  The National Taxpayer Advocate also proposed, in her most recent annual report to Congress, a legislative fix by amending the Code to provide that judicial filing deadlines are non-jurisdictional.  We wish them well!

Where do we go from here?

The Court of Federal Claims agreed to transfer the case, at the plaintiffs’ request and over the government’s objections, so the Pareskys are headed to the Southern District of Florida. They hope to persuade the SDF that a suit for overpayment interest fits within “tax refund jurisdiction” and the suit therefore would be timely under the tax refund statute of limitations in Section 6532.  There is a split between the Federal Circuit and the Sixth Circuit – add the Second Circuit if it affirms the District Court in the Pfizer case.  Neither party cited precedents from the Eleventh Circuit, so it’s at least possible that the SDF will follow Scrippsand find it has jurisdiction.

Meanwhile, Pfizer is still waiting for a ruling by the Second Circuit.  Paresky offers arguments for both sides in PfizerParesky held that the six-year statute of limitations applies (good for Pfizer) but that tax refund jurisdiction is not available (bad for Pfizer).  Pfizer has requested, if the Second Circuit affirms the SDNY, that it also transfer the case to the CFC.  It seems that court would clearly have jurisdiction under the Tucker Act, and Pfizer met the six-year statute of limitations, so the CFC apparently would hear the merits of the case.  The favorable Doolin precedent in the Second Circuit wouldn’t carry as much weight in the CFC but Pfizer might still prevail on the merits.

The government stated in its brief that it may or may not oppose transfer, depending on whythe Second Circuit (hypothetically) rules against Pfizer.  If the Second Circuit rules that “tax refund jurisdiction” does not apply to suits for overpayment interest, the government would not oppose transfer.  But if the Second Circuit agrees that “tax refund jurisdiction” applies to the case and rules against Pfizer only on the basis that Pfizer did not file its suit within two years of the notice of disallowance, the government asked that transfer be denied.

Remember to File a Refund Suit under the Shorter SOL when Congress Lets You Sue after Paying Only 15%

We welcome frequent guest blogger Carl Smith who writes about the time frame for filing a refund suit with respect to a divisible, assessable penalty. Here, the taxpayer’s attorney seems to have relied on the general rule allowing a taxpayer to bring a refund suit within two years after payment. Unfortunately for the taxpayer, that rules does not apply in this context. Keith

In a recent unpublished opinion of the Ninth Circuit in Taylor v. United States, an individual who was assessed multiple section 6694 return preparer penalties tried to take advantage of the statutory rule allowing him to bring a refund suit by paying only 15% of each penalty. However, it appears that he did not pay close attention to the provision of section 6694(c)(2) that requires an expedited suit for refund in that event. He brought a district court refund suit on February 25, 2016, a year and three months after he made the 15% payments and filed a refund claim. That suit would have been timely had the 2-year period after formal notification of claim disallowance applied under section 6532(a). But, section 6532(a) does not apply to such a 15% payment suit, and he missed the shorter statute of limitations applicable to a suit where 15% is paid. As a result, the Ninth Circuit affirmed the district court for the Eastern District of Washington’s dismissal of his refund suit for lack of jurisdiction as untimely. It seems to me that he can now pay the remaining 85% and file a new refund claim and sue concerning the 85%. But, I doubt that he can ever get back the 15% paid because the IRS disallowed that claim on January 29, 2016, so it is now more than 2 years since the claim for the 15% was disallowed. Any new suit for the 15% or the 85% would, I think, have to be brought under the section 6532(a) filing deadline after full payment.

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In Flora v. Unites States, 362 U.S. 145 (1960), the Supreme Court held that a suit for refund under 28 U.S.C. § 1346(a)(1) involving an income tax deficiency could only be brought if the taxpayer first paid 100% of the deficiency. Treating full payment as a jurisdictional prerequisite, said the Court, was not clearly required by the words of the statute or its 1921 legislative history. However, subsequent developments – including the 1924 creation of the Board of Tax Appeals to allow prepayment review of deficiencies – influenced the Supreme Court’s thinking.

It was not clear after Flora whether that full payment requirement would apply to assessable penalties, such as the section 6672 responsible person penalty, since there was no possibility of Tax Court prepayment review of the few assessable penalties then in existence. However, a footnote in Flora indicated that, in the case of divisible taxes, payment of one of one divisible portion would be enough jurisdictionally to found a refund suit. Relying on that footnote in Flora, less than three months after Flora, in Steele v. United States, 280 F.2d 89 (8th Cir. 1960), the Eighth Circuit held that the full payment rule of Flora applied to the divisible penalties under section 6672 such that suit was jurisdictionally proper if the taxpayer had fully paid only one penalty for one employee for each quarter involved in the suit.

Section 6672(c)(1) currently provides that if a taxpayer, within 30 days of notice and demand, makes such a divisible payment, files a refund claim, and puts up a bond for the rest of the assessment, then the IRS is barred from collecting by levy or bringing a suit for payment of the balance assessed so long as a taxpayer’s refund suit under (c)(2) is pending. (The IRS may, however, counterclaim for the balance in the suit brought under (c)(2).) Under (c)(2), a taxpayer who has done what is required under (c)(1) may bring a refund suit, but only within an abbreviated period – i.e., up to 30 days after the refund claim is denied.

There are a few other assessable penalties that have special jurisdictional payment and filing features similar to that of section 6672(c). Those penalties are under section 6694 (return preparer penalty), 6700 (penalty for promoting abusive tax shelters), and 6701 (penalty for aiding and abetting understatements of tax). The assessable section 6702 frivolous submission penalty once had similar features for a part-payment refund suit, but those were removed. In each of the three cases, section 6694(c)(1) or 6703(c)(1) (applicable to the section 6700 and 6701 penalties) provides that paying 15% and filing a refund claim within 30 days of notice and demand can be enough to bar the IRS from collecting by levy or bringing a suit for payment of the balance assessed so long as a refund suit under (c)(2) is pending. (Note the lack of a bond requirement for the balance, unlike under section 6672(c).) Under (c)(2), a litigant who has done what is required under (c)(1) may bring a refund suit, but only within an abbreviated period that is potentially shorter than the period for section 6672 penalties – i.e., under sections 6694(c)(2) and 6703(c)(2), within the earlier of (1) 30 days after the refund claim is denied or (2) six months and 30 days after the refund claim is filed. Note that the six months and 30 day alternative period is a much more limited period than the indefinite period to bring suit in section 6532(a) in the absence of a claim disallowance.

I speculate that what happened in the Taylor case is that, since he was familiar with the rule of section 6532(a) that effectively allows an indefinite period to bring suit in the absence of a notification of claim disallowance, he did not realize that, under section 6694(c)(2), he could not wait beyond six months and 30 days to bring suit after he filed his refund claim – even though his claim had not yet been disallowed. My speculation is because he actually did bring suit within 30 days after the claim was disallowed. But, that was too late. And nothing in either the district court or appellate court opinion gives a reason for his late filing that might suggest an equitable reason for late filing.

So, what did Taylor argue to get out of the box he put himself into?

First, in his district court written response to the DOJ’s motion to dismiss for lack of jurisdiction he argued that the filing deadline in section 6694(c)(2) is not jurisdictional, but is simply a statute of limitations that does not go to the power of the court. I am not sure why he made this argument, since he did not show facts for equitable tolling of a nonjurisdictional statute of limitations. Even if the filing deadline is not jurisdictional, it is still a mandatory claims processing rule with which he did not comply. He argued that (c)(2) is not jurisdictional, but only “sets limits on the time frame in which the IRS is prohibited from pursuing collection action of the penalties at issue.” The Ninth Circuit disagreed.

Here is the full text of section 6694(c)(1) and (2):

(c)  Extension of period of collection where preparer pays 15 percent of penalty.

(1) In general. If, within 30 days after the day on which notice and demand of any penalty under subsection (a) or (b) is made against any person who is a tax return preparer, such person pays an amount which is not less than 15 percent of the amount of such penalty and files a claim for refund of the amount so paid, no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until the final resolution of a proceeding begun as provided in paragraph (2). Notwithstanding the provisions of section 7421(a), the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court. Nothing in this paragraph shall be construed to prohibit any counterclaim for the remainder of such penalty in a proceeding begun as provided in paragraph (2).

(2)  Preparer must bring suit in district court to determine his liability for penalty. If, within 30 days after the day on which his claim for refund of any partial payment of any penalty under subsection (a) or (b) is denied (or, if earlier, within 30 days after the expiration of 6 months after the day on which he filed the claim for refund), the tax return preparer fails to begin a proceeding in the appropriate United States district court for the determination of his liability for such penalty, paragraph (1) shall cease to apply with respect to such penalty, effective on the day following the close of the applicable 30-day period referred to in this paragraph.

Apparently, the question whether the filing deadline under section 6694(c)(2) is jurisdictional has not been previously addressed in the Ninth Circuit. However, the Ninth Circuit in Taylor noted the virtually verbatim similarity of the language of section 6694(c) and that of section 6703(c). In Thomas v. United States, 755 F.2d 728 (9th Cir. 1985), the Ninth Circuit had held that the 30-day deadline in section 6703(c)(1) after a notice and demand to pay the 15% is a jurisdictional requirement of a refund suit in a case involving a section 6702 penalty that was at the time (but is no longer) subject to section 6703(c). In Korobkin v. United States, 988 F.2d 975 (9th Cir. 1993), the Ninth Circuit had held that the six months plus 30-day deadline in section 6703(c)(2) to file suit is a jurisdictional requirement of a refund suit involving a section 6700 penalty. Taylor followed these cases by analogy in holding that compliance with the filing deadline under section 6694(c)(2) is jurisdictional. So, the district court properly dismissed this untimely suit for lack of jurisdiction.

The second thing Taylor argued was that instead of having paid 15% of each penalty (as he originally directed the IRS to apply the payments) he should be deemed to have paid 100% of 15% of the penalties, so the district court had jurisdiction under section 1346(a)(1), and suit was timely under section 6532(a) with respect to the penalties that he had fully paid. This was an interesting argument, but it was first raised at oral argument on the DOJ’s motion to dismiss before the district court. The district court held that this argument was raised too late to be considered. The Ninth Circuit agreed that this argument was not timely raised.

Observations

Les and I recently blogged on Larson v. United States, 888 F.3d 578 (2d Cir. 2018), here and here. Larson involved a section 6707 penalty for failing to file a form with the IRS providing information concerning listed transactions as to which the rules of section 6703(c) do not apply. In Larson, the Second Circuit held that Flora requires full payment of such an assessable penalty as a jurisdictional prerequisite of a refund suit, even though there is no alternative Tax Court prepayment contest permitted for such penalty. Part of why Larson ruled the way it did was because the Second Circuit there noted that Congress, in sections 6694(c) and 6703(c), had created 15% exceptions to the full payment rule of Flora, but had not done so for other assessable penalties. Taylor also holds the 15% payment requirement to be jurisdictional, citing Flora.

The Ninth Circuit in Taylor failed to acknowledge that its ruling that the filing deadline in section 6703(c)(2) is jurisdictional is in conflict with that of at least one other Circuit court: In Dalton v. United States, 800 F.2d 1316 (4th Cir. 1986), the Fourth Circuit had held that the 30-day-after-claim-disallowance deadline in section 6703(c)(2) to file suit is a not a jurisdictional requirement of a refund suit involving a section 6702 penalty. Indeed, in Dalton, the court equitably tolled the filing deadline (tolling only being possible if the filing deadline is not jurisdictional). Taylor’s attorney cited Dalton in his opening Ninth Circuit brief.

I have repeatedly noted in PT that, under recent Supreme Court case law since Kontrick v. Ryan, 540 U.S. 443 (2004), filing deadlines are no longer considered jurisdictional, unless Congress has made a rare “clear statement” in the statute that it wants what is usually a nonjurisdictional claim processing rule (a filing deadline) to be treated as jurisdictional. Of course, the Circuit court opinions in Thomas, Korobkin, and Dalton were decided before Kontrick and its progeny, so do not analyze section 6703(c) under the proper current case law. I am disappointed, however, that the Ninth Circuit in Taylor (here in 2018) did not think to reconsider its holdings in Thomas and Korobkin in light of the more recent Supreme Court authority. Appellate judges know that authority quite well and should employ it, even where (as in Taylor’s case) both parties failed to cite it in their briefs. See Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2015) (not merely relying on prior precedent, but analyzing the wrongful levy suit filing deadline at section 6532(c) under recent Supreme Court case law and holding the deadline not jurisdictional and subject to equitable tolling).

As PT readers know, Keith and I have recently argued (with little success so far) that Tax Court filing deadlines for stand-alone innocent spouse actions (at section 6015(e)(1)(A)) and Collection Due Process actions (at section 6330(d)(1)) should no longer be considered jurisdictional under recent Supreme Court case law. We have lost those cases mostly because those provisions use the words “the Tax Court shall have jurisdiction” in the same sentences that provide the filing deadlines. It appears that one could make a stronger case that the filing deadlines in sections 6694(c)(2) and 6703(c)(2) are not jurisdictional: First, the sentences in those provisions do not contain the word “jurisdiction”. Indeed, they do not speak at all to the district court’s jurisdiction or powers. Taylor is right that these provisions really only give deadlines to file and “set[] limits on the time frame in which the IRS is prohibited from pursuing collection action of the penalties.” That does not comport with the Supreme Court’s current view that “Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional . . . .” United States v. Wong, 135 S. Ct. 1625, 1632 (2015). Second, the Supreme Court “has often explained that Congress’s separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional.” Id. at 1633 (citations omitted). Here, the real jurisdictional basis for a 15% payment refund suit is still located at 28 U.S.C. § 1346(a)(1), far away from these Internal Revenue Code sections. So, I respectfully disagree with the Ninth Circuit’s holding in Taylor that these filing deadlines are jurisdictional. [Sigh]