Volpicelli v. U.S.: Solicitor General Does Not Seek Certiorari

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Carl writes the final chapter in the long tale of Logan Volpicelli. As Carl points out, PT and Carl in particular have taken a strong interest in this case and whether certain deadlines in the Code are subject to equitable tolling. Les

July 7 was the date by which, if he ever wanted to, the Solicitor General had to file a petition for certiorari to review the Ninth Circuit’s January 30 opinion in Volpicelli v. United States, 777 F.3d 1042.  Volpicelli held that the 9-month period in section 6532(c) in which to bring a wrongful levy suit was not jurisdictional and was subject to equitable tolling.  For a post on the opinion, see here.  In unsuccessfully seeking a Ninth Circuit en banc rehearing, the DOJ pointed out that Volpicelli conflicted with opinions from several other Circuits and was a case of “exceptional importance”.  (See page 1 of rehearing request attached to my post of March 18; see also Keith’s post discussing the Ninth Circuit denying the en banc request.)  You would think that, given all the effort the DOJ already put into the case, the Solicitor General would ask for certiorari, as I predicted in my March 18 post.  But I was wrong.  Cooler government heads prevailed.  No cert. petition was filed.  In this post, I will explain why I think the government abandoned further contest of Volpicelli.

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First, as Keith has previously noted (I cite him in my March 18 post), the facts of Volpicelli were too appealing for the plaintiff:  At age 10, Logan Volpicelli had college money (originally given to him by his great grandmother) taken from him by the IRS to pay for his imprisoned father’s tax debts.  And then the adults in his life incompetently failed to bring a timely suit before he reached the age of majority.  Minority is often a ground for equitable tolling of many state law statutes of limitations.  Whenever I described the facts of Volpicelli to non-lawyers, they would bristle about the IRS’ behavior in this case — even if the IRS did not know at the time of the levy that this money was not the father’s.  When the IRS won the similarly-factually-appealing case of United States v. Brockamp, 519 U.S. 347 (1997) (holding, in a case of Alzheimer’s-induced disability, that the 3-year period at section 6511 to file a refund claim is not subject to equitable tolling), all it did was provoke an immediate Congressional override of the decision the following year at new section 6511(h).  If the IRS managed to win Volpicelli, it might only trigger another instant statutory override.  The IRS may have wisely concluded to wait to litigate the section 6532(c) issue in a case involving some big corporation as to which there would be less sympathy.

Second, the Circuit split highlighted by the DOJ to the Ninth Circuit is more apparent than real, since, as I noted in my post of March 18, the conflicting Circuit court opinions predate most of the Supreme Court opinions from the last decade that set forth a more limited view of what statutes are “jurisdictional” and a more expansive view of the kinds of statutes that are subject to the presumption in favor of equitable tolling set forth in Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990).  In other words, the conflicting opinions of other Circuits have clearly been sapped of their vitality by later Supreme Court opinions, though the Circuit court opinions have not yet formally been overruled.

Third, after the Volpicelli rehearing denial, on April 22, in United States v. Wong, 135 S. Ct. 1625, the Supreme Court held that the time periods in the Federal Tort Claims Act to file administrative claims and bring district court suits were not jurisdictional and were subject to equitable tolling.  As I pointed out in a post on Wong done on April 23, anyone reading Wong would conclude that the IRS would lose Volpicelli in the Supreme Court, unless the Solicitor General could successfully argue that there is simply no tolling of any time limit in the IRC.  That’s a position that the IRS has maintained since Brockamp, but that was explicitly rejected in Volpicelli. (Parenthetically, the IRS — playing heads I win, tails you lose — itself unsuccessfully asked for equitable tolling of the section 6501 assessment period in Doe v. KPMG, 398 F.3d 686 (5th Cir. 2005).)  Volpicelli was a much easier case than Wong in which to hold for tolling, since the main contention in Wong for lack of tolling was that the statute there involved  — including the strong language “shall be forever barred” — was arguably derived from wording in the Tucker Act at 28 U.S.C. sec. 2501 that the Supreme Court (on stare decisis grounds) had held, in John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008), was jurisdictional.  By contrast, a stare decisis argument could not be made for the Volpicelli statute, which was drafted in 1966 out of whole cloth, with weaker language (merely “shall”) and no venerable antecedents that had been held not tollable.  Mayo Foundation v. United States, 562 U.S. 44 (2011), is probably an indicator, as well, that the high court would not look kindly on an argument that tax law gets a complete special exception to the normal rules of jurisdiction and equitable tolling.

Fourth, the government has likely finally accepted the fact that the Volpicelli opinion will not have wide impact (other than being the first Circuit court opinion post-Brockamp holding that any IRC time period can be equitably tolled).  Volpicelli does not change a Circuit split that was preexisting, since the Ninth Circuit had held in 1995 that the section 6532(c) period was subject to equitable tolling.  Further, the government likely could not disagree with the plaintiff’s count that in the decade leading up to 2013, there had been, on average, only 37 wrongful levy suits filed annually in the whole country.  Even if the Volpicelli holding were to spread countrywide, there would likely be no more than a handful of additional wrongful levy suits brought each year, since most people do not deliberately wait more than 9 months to bring suit when their money is taken for someone else’s tax debts.  Letting Volpicelli alone at least perpetuates, for now, some Circuit court opinions from other Circuits that may dissuade some plaintiffs who have not been reading more recent Supreme Court opinions from making an equitable tolling argument under section 6532(c). And anyone citing Volpicelli to a different Circuit when a different IRC time period is involved will now cite only to a Ninth Circuit opinion, not to a more influential Supreme Court opinion.

Equitable tolling arguments are (thankfully) not made that often, so it may be some time before another Circuit court has to face the issue of whether another time period in the IRC is subject to equitable tolling or whether a prior holding that section 6532(c) can’t be equitably tolled needs to be reversed.  In the possibly-long meantime, the IRS is better off in letting the plaintiff’s victory in Volpicelli alone and not making a bad situation worse for the IRS.

Carlton Smith About Carlton Smith

Carlton M. Smith worked (as an associate and partner) at Roberts & Holland LLP in Manhattan from 1983-1999. From 2003 to 2013, he was the Director of the Cardozo School of Law tax clinic. In his retirement, he volunteers with the tax clinic at Harvard, where he will be Acting Director from January to June 2019.

Comments

  1. Jason T. says:

    Congratulations to Carl on his now irrevocable impressive victory.

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