Thursday, June 18, 2009

An individual's refund claims were untimely because he sought to recover taxes that were deemed to have been paid more than three years before he filed his refund claims; therefore any recovery was barred by Code Sec. 6511(b)(2)(A). Under Code Sec. 6513(b), amounts that were deducted and withheld during the calendar year were deemed paid on the 15th day of the fourth month following the close of each tax year in issue. His argument that the IRS's filing of substitute returns extended his time to file for a refund was rejected because the doctrine of equitable tolling did not apply to refund claims that were barred by the statute of limitations under Code Sec. 6511.

Michael E. McKinzy, Sr., Appellant v. Internal Revenue Service, United States of America, United States Department of Justice, Appellees.

U.S. Court of Appeals, 8th Circuit; 08-1004, June 9, 2009.


Before: Bye, Colloton and Gruender, Circuit Judges.

PER CURIAM.: In 2007, Michael McKinzy filed tax returns for tax years 1999, 2001, and 2002, claiming a refund for each year plus additional child tax credit for tax year 1999. Thereafter, he filed this suit alleging that the Internal Revenue Service (IRS) wrongfully disallowed his tax refund claims for those years. The district court 1 granted summary judgment for the United States, 2 concluding that the refund claims were untimely. McKinzy appeals, and following de novo review, see Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006), we affirm.

As a jurisdictional prerequisite to bringing a tax refund suit, a taxpayer is required to file a refund claim, see 26 U.S.C. § 7422(a), and must do so within three years of when the tax return was filed, or within two years from when the tax was paid, whichever is later. See 26 U.S.C. § 6511(a). McKinzy filed his refund claims simultaneously with his tax return. See 26 C.F.R. § 301.6402-3(a)(5) (properly executed tax return constitutes claim for refund within meaning of § 6511 for amount of overpayment disclosed by such return, and is considered filed on date when return is considered filed); Weisbart v. U.S. Dep't of Treasury, 222 F.3d 93, 94-96 (2d Cir. 2000) (taxpayer's refund claim was filed within three years from time return was filed where he submitted 1991 tax return in 1995, because he submitted refund claim simultaneously with return).

McKinzy cannot recover a refund, however, for any tax that was paid more than three years before he filed his refund claim. See 26 U.S.C. § 6511(b)(2)(A) (when claim is filed during three-year period prescribed in § 6511(a), "the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return"). McKinzy's taxes for 1999, 2001, and 2002 were deemed "paid" on April 15, 2000, April 15, 2002, and April 15, 2003, respectively, and his claim for additional child tax credit for the 1999 tax year was deemed paid on April 15, 2000. See 26 U.S.C. § 6513(b)(1) (for purposes of § 6511, any tax that is deducted and withheld during calendar year is deemed "paid" on fifteenth day of fourth month following close of tax year with respect to which tax is allowable as credit). Accordingly, his refund claims, filed in 2007, were untimely as to the taxes paid for each of the years at issue. See Oropallo v. United States, 994 F.2d 25, 27 (1st Cir. 1993) (per curiam) ( § 6511(b) barred recovery of taxes for tax year 1983 because those taxes were deemed paid on April 15, 1984, and taxpayer did not file claim for refund until March 1990). Further, equitable tolling does not apply in this context. See United States v. Brockamp, 519 U.S. 347, 350-54 (1997) (declining to read implicit equitable-tolling provision into § 6511). Accordingly, we reject McKinzy's argument that the IRS's filing of substitute returns in 2005 served to extend his time to file for a refund, and we affirm the district court's judgment.

1 The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.

2 The district court agreed with the United States that it was the proper defendant. See 28 U.S.C. § 1346(a)(1).

An individual who paid a trust fund recovery penalty in full over ten years and who was seeking a refund for the total amount could potentially recover only amounts paid during the two years preceding the date on which he filed his claim. While a refund claim cannot be made until after the amount assessed has been paid in full, under Code Sec. 6511(a), a refund claim must still be filed within three years of when the return was filed or within two years of when the tax was paid, whichever is later. Because the taxpayer did not file his refund claim within three years of filing the return, the applicable statute of limitations was two years from the time the tax was paid. Therefore, the taxpayer's refund could not exceed the portion of the tax paid during the two years immediately preceding the filing of the claim.

B. Dziewecynski, DC Minn., 2005-2 USTC ¶50,576.

An individual's suit seeking a refund of withheld taxes was dismissed for lack of jurisdiction. Because the taxpayer had not filed a tax return for the year at issue, he was required to file a refund claim within two years of paying the tax. However, the taxpayer did not file an administrative claim for more than eight years after the withholding credit was applied to his account.

E.W. Sidney, DC N.Y., 2006-1 USTC ¶50,200.

An individual was not entitled to refund of an overpayment of her individual federal income taxes that the IRS had applied as credit against an outstanding joint income tax liability arising in an earlier year. She failed to file the refund claim within the two-year statutory period from the date of the last payment made to the IRS.

K.C. Barker, FedCl, 2006-2 USTC ¶50,491.

The statute of limitations barred an individual's refund claims for three of the six tax years at issue because he sought refunds of taxes that were paid more than two years before his late returns were filed. Therefore, the court lacked subject matter jurisdiction to review his refund claims.

M.E. McKinzy, Sr., DC Mo., 2008-1 USTC ¶50,115.

The Court of Federal Claims lacked subject matter jurisdiction over an individual's tax refund claims because his claims were filed after the two-year statute of limitations under Code Sec. 6511(a) had lapsed. The individual claimed refunds of amounts the IRS had levied and applied to trust fund recovery penalties assessed against him as a responsible person for two corporations. However, he filed his claims more than two years after the last levy and, therefore, his refund claims were barred by the limitations period in Code Sec. 6511.

B.J. McAdams, FedCl (unpublished opinion), 2008-1 USTC ¶50,181.

An individual's refund claim requesting that amounts improperly collected by the IRS an applied to an invalid trust fund recovery penalty (TFRP) assessment be credited to a valid (TFRP) assessment was time-barred pursuant to the two-year statute of limitations. The IRS had already credited all of the payments the individual made in the two-years prior to his administrative claim for refund.

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