Green v. United States , 428 F. App'x 863 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 5, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JANICE D. GREEN, as guardian of
Gladys I. Green,
Plaintiff-Appellant,
No. 10-5133
v. (D.C. No. 4:10-CV-00080-CVE-FHM)
(N.D. Okla.)
UNITED STATES OF AMERICA,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH and BALDOCK, Circuit Judges, BRORBY, Senior
Circuit Judge.
This case concerns a suit filed by Gladys I. Green (Ms. Green), to obtain a
refund of taxes paid on the estate of her late husband, Robert C. Green.
Ms. Green, appearing pro se as she did in the district court, 1 appeals the court’s
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We question whether Janice D. Green, the daughter and guardian of Gladys
I. Green, can appear pro se when acting as her mother’s guardian. See Meeker v.
(continued...)
order that dismissed the complaint on the ground that she lacked standing. We
affirm the court’s order, but on different grounds.
Background
Robert C. Green died in 1980. His wife, Ms. Green, was the sole
beneficiary of his estate. Robert G. Green, their son, was appointed administrator
of the estate for the probate proceedings. In 1982, the estate filed a tax return in
which it reported owing $75,798 in taxes. In 1985, the Internal Revenue Service
(IRS) assessed additional taxes of $83,422. When the estate failed to pay the
outstanding taxes, the IRS in 1988 filed a collection action in federal court which
it sought to reduce to judgment the assessments, statutory interest, and penalties.
Robert G. Green confessed judgment for the taxes, interest, and penalties, and in
1989, the district court entered judgment in favor of the government in the
amount of $480,588.
In 1989, the IRS filed its judgment against the estate in the probate court.
Several years later, the court removed Robert C. Green as administrator and
appointed a new administrator. Then in July 1996, the court entered a final
decree, which among other things, distributed the estate’s assets. After the
1
(...continued)
Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per curiam) (holding that a parent
may appear pro se when acting on his own behalf, but he or she must be
represented by a lawyer when acting as his child’s guardian). The parties have
not raised the issue and we need not decide it because the district court lacked
jurisdiction in any event.
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administrator and attorney fees were paid, the estate had $713,292 in assets,
which the court ordered be paid to the government in satisfaction of its judgment
for taxes, interest, and penalties. It is undisputed that Ms. Green received notices
of the filings and actions taken by the court during the pendency of the probate
proceedings.
Four years later, in 2000, Ms. Green submitted a request to the IRS under
the Freedom of Information Act (FOIA) for documents concerning its efforts to
collect taxes from the estate. The IRS responded by producing more than 2,300
pages of documents. In 2002, Ms. Green filed a federal court suit against the
government in which she asserted claims under 26 U.S.C. §§ 7426 (wrongful
levy), 7431 (unauthorized disclosure), 7432 (failure to release lien), and 7433
(unauthorized collection activity). The complaint also contained a Bivens claim2
in which Ms. Green alleged the IRS seized her property in violation of the Fourth
Amendment. Following the district court’s dismissal of the complaint, Ms. Green
filed an amended complaint, which she later voluntarily dismissed.
In the fall of 2005, Ms. Green, through her daughter and guardian Janice D.
Green, filed a new suit against the government in which she again asserted claims
under § 7426 (wrongful levy) and Bivens. The district court found that the statute
2
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971).
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of limitations barred the wrongful levy claim and entered judgment in favor of the
United States.
Ms. Green, again through her guardian, filed another federal-court suit in
2007, in which she sought for the first time a refund of the taxes, interest, and
penalties collected from the estate under 26 U.S.C. § 7422. The district court
identified the “key issue” raised by the government’s motion to dismiss was
whether Ms. Green had “filed a timely administrative claim.” Green v. United
States, No. 07-CV-0231, 2008 WL 508675, at *4 (N.D. Okla. Feb. 22, 2008). In
her response to the motion to dismiss, Ms. Green argued that she sent a protest
letter to the IRS on April 17, 1996, and never received a response. But Ms. Green
failed to produce a copy of the letter to allow the court to evaluate whether the
letter could be read to constitute a claim, and the court dismissed the complaint
without prejudice.
In February 2010, Ms. Green, again through her guardian, filed this suit in
which she sought a refund under § 7422 of the taxes, interest, and penalties
collected from the estate in 1996. To bolster her claim that she had timely filed
an informal administrative claim, she attached three documents that were not part
of her pleadings in her 2007 refund suit: (1) an April 8, 1996 letter from her to
then United States Senator Don Nickles in which she asked for his help in
stopping the proposed sale of estate assets; (2) an April 28, 1996 letter from
Janice D. Green to a regional commissioner of the IRS in which she outlined her
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belief that a piece of proposed Congressional legislation “could help my mother
and other taxpayers in similar situations,” R., Vol. 1 at 25, asked him to stop the
proposed sale of estate assets, and explained that an oil industry bust in Oklahoma
at the time of her father’s death caused the estate to be overvalued; and (3) a
July 18, 2002 letter from Janice D. Green to the district director of the IRS, which
said it was an “administrative claim,” id. at 41, under §§ 7433 (unauthorized
collection activity), 7432 (failure to release lien), and 7431 (unauthorized
disclosure).
In its motion to dismiss, the government argued, among other things, that
Ms. Green lacked standing, her suit was barred by the doctrines of claim and issue
preclusion, and the complaint failed to state a claim under § 7422. In her
response, Ms. Green argued that she had standing, and regarding the merits,
contended that she had filed an informal refund claim within two years from the
time the tax was paid, and the claim was perfected when the formal refund claim
was filed on July 18, 2002. The district court granted the motion on the ground
Ms. Green lacked standing because the tax was paid by the estate. This appeal
followed.
Analysis
The government concedes that the district court’s conclusion that
Ms. Green lacked standing might be incorrect, Aplee. Answer Br. at 13, n.3, but
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urges that the order should be affirmed on alternate grounds. 3 “We may affirm
the dismissal on any grounds for which there is a record sufficient to permit
conclusions of law, even grounds not relied upon by the district court.” Mann v.
Boatright, 477 F.3d 1140, 1145 (10th Cir. 2007) (quotation omitted).
Under 28 U.S.C. § 1346(a)(1), the United States has consented to be sued
in federal district court in civil actions “for the recovery of any internal-revenue
tax alleged to have been erroneously or illegally assessed or collected.”
However, a party bringing such an action must exhaust his administrative
remedies by filing a timely and proper refund claim prior to filing suit. Section
7422(a) provides: “No suit or proceeding shall be maintained in any court for the
recovery of any internal revenue tax alleged to have been erroneously or illegally
assessed or collected . . . until a claim for refund . . . has been duly filed with
the Secretary, according to . . . law . . . and the [Secretary’s] regulations.”
As to the time for filing a refund claim, 26 U.S.C. § 6511(a) provides:
“Claim for [a] refund of an overpayment of any tax . . . shall be filed by the
taxpayer within 3 years from the time the return was filed or 2 years from the
3
We acknowledge that standing is a jurisdictional issue, and should be
addressed prior to considering the merits of a case. However, the timely filing of
a refund claim is also a jurisdictional prerequisite to filing a suit for a refund
under 26 U.S.C. § 7422. Graham v. United States (In re Graham), 981 F.2d
1135, 1138 (10th Cir. 1992). Under such circumstances, we can choose which
jurisdictional grounds to address in resolving a case. See Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (recognizing that “a
federal court has leeway to choose among threshold grounds for denying audience
to a case on the merits”) (quotation omitted).
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time the tax was paid, whichever of such periods expires the later.” 26 C.F.R.
§ 301.6402-2 specifies what should be included in a claim and to whom it should
be sent. Included in the regulation is the requirement that the taxpayer must file
the claim with the service center serving the internal revenue district in which the
tax was paid. § 301.6402-2(a)(2).
On the basis of the Supreme Court’s decision in United States v. Dalm,
494 U.S. 596, 602 (1990), which held that there are no equitable exceptions to the
requirement for timely filing under § 6511, we have explained that “the
government does not waive sovereign immunity in a suit for a tax refund until
presented with an administrative claim which it has either denied or ignored.”
Graham v. United States (In re Graham), 981 F.2d 1135, 1138 (10th Cir. 1992).
Moreover, “[t]he administrative claim itself must be filed within the later of two
years after the tax was paid or three years after the return was filed. These rules
are nonwaivable jurisdictional requirements.” Id. (citation omitted, emphasis
added). See also Angle v. United States, 996 F.2d 252, 253 (10th Cir. 1993)
(holding that “[f]iling a timely tax refund claim with the IRS is a jurisdictional
prerequisite to maintaining a tax refund suit”). 4
4
Title 26 U.S.C. § 6532(a)(1) governs the time in which a taxpayer must file
suit once a refund claim has been disallowed. Section 6532(a)(2) specifically
allows the Secretary to extend the two-year period for filing suit. However, we
are not concerned with the timeliness of Ms. Green’s suit, but instead the failure
to file a timely refund claim under § 6511(a), which is jurisdictional and cannot
be waived.
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We need not resolve whether the April 1996 letters constituted an informal
claim. Regardless of the content of the letters and to whom they were sent, they
were untimely under § 6511(a), a requirement that cannot be waived. Graham,
981 F.2d at 1138. Two of the letters were sent in April 1996, several months
before the taxes were paid, in July 1996. Indeed, Ms. Green concedes that the
April 2006 letters are untimely and cannot suffice as claims because they pre-date
payment of the taxes. See Aplt. Reply Br. at 4, 12.
Still, Ms. Green argues that several other letters attached as exhibits to her
complaint stand as informal refund claims that were made during the two years
allowed under § 6511(a) in which to file a refund claim. 5 She further argues that
these informal claims were perfected on July 18, 2002, when an administrative
claim letter was sent to the IRS.
The United States Supreme Court has held
that a notice fairly advising the Commissioner of the nature of the
taxpayer’s claim, which the Commissioner could reject because too
general or because it does not comply with formal requirements of
the statute and regulations, will nevertheless be treated as a claim
where formal defects and lack of specificity have been remedied by
amendment filed after the lapse of the statutory period.
United States v. Kales, 314 U.S. 186, 194 (1941). But to constitute an informal
claim, it must “fairly advis[e] the Commissioner of the nature of the taxpayer’s
claim.” Id. See also Kaffenberger v. United States, 314 F.3d 944, 954 (8th Cir.
5
We construe Ms. Green’s pro se filings liberally. Van Deelen v. Johnson,
497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
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2003) (holding that an informal claim must “put[] the IRS on notice that a claim
is being made”).
On July 22, 1996, the estate paid taxes in the amount of $713,292. From
this day forward, the estate had two years in which to submit a refund claim to the
IRS, be it formal or informal. Ms. Green admits that no formal claim was filed
until July 18, 2002. As such, we turn to the exhibits cited by Ms. Green that she
contends constituted an informal claim. An examination of each exhibit leads us
to conclude they did not put the IRS on notice that a claim was being made.
In April 1997, an IRS case worker wrote to Janice D. Green as follows:
“This letter is to acknowledge receipt of your letter to Senator Bob Kerrey and
Representative Rob Portman, Co-Chairmen of the National Commission on
Restructuring the Internal Revenue Service.” R., Vol. 1 at 28 (emphasis added).
But there is no copy of the letter to Senator Kerrey and Representative Portman in
the record.
On July 1, 1997, Janice D. Green wrote to a taxpayer advocate requesting
an investigation and review of her “mother’s situation regarding the taxes on my
father’s estate,” id. at 30, in which she complained about issues of hardship,
fairness and alleged ethical violations on the part of the administrator. The word
claim or refund was never mentioned. More to the point, Ms. Green has not cited
any authority, nor have we uncovered any, to support the notion that a letter to a
taxpayer advocate puts the IRS on notice of a refund claim.
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On October 21, 1997, K.J. Sawyer, a district director of the IRS wrote to
Senator Don Nickles a letter in response to an inquiry by Mr. Nickles “on behalf
of your constituent, Ms. Janice Green.” Id. at 33. He also wrote: “Our office has
assured Ms. Green her concerns have been referred to Legislative Affairs in
Washington, D.C., for consideration of future tax law changes and to Inspection
for consideration of allegations of ethical misconduct.” Id. Again, we do not
have a copy of Senator Nickles’s letter, but we are unaware of any authority to
support the argument that a United States Senator can make a refund claim on
behalf of his constituent, or more to the point, that the IRS was on notice that a
refund claim was being made.
On April 21, 1998, Richard M. Creamer, a project manager for the IRS,
wrote to Janice D. Green, acknowledging receipt of her “October 3, 1997
correspondence to the Senate Finance Committee in which you expressed concern
over an unresolved tax problem.” Id. at 35. In her reply brief, Ms. Green writes
that Mr. Creamer was “the head of the special IRS office set up at the time of the
1997 – 1998 Senate Finance Committee hearings on IRS taxpayer abuse. This
office was established to audit and investigate some of the cases that had come to
the attention of the Senate Finance Committee.” Aplt. Reply Br. at 5 (emphasis
added). There is no suggestion in Mr. Creamer’s letter that Ms. Green had filed a
refund claim or that the IRS or Senate Finance Committee were investigating a
refund.
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According to Ms. Green, Elizabeth Johnson was an auditor “performing a
second audit of the Estate at the request of the Washington DC office overseeing
the [Senate Finance Committee] cases.” Id. at 6 (emphasis added). She argues
that Ms. Johnson made a computer entry on December 3, 1998, that established
the IRS was on notice of the estate’s refund claim. To the contrary, Ms. Johnson
appeared to question whether any of Ms. Green’s letters to the Senate Finance
Committee constituted a refund claim. In apparent recognition that she never
received a denial letter from the IRS, the Senate Finance Committee, or any other
person or entity, Ms. Green argues without record support that an attorney told
Ms. Johnson that “she did not need to deny the refund claim.” Id. at 7.
“If the Commissioner chooses not to stand on his own formal or detailed
requirements, it would be making an empty abstraction, and not a practical
safeguard, of a regulation to allow the Commissioner to invoke technical
objections after he has investigated the merits of a claim and taken action upon
it.” Angelus Milling Co. v. Comm’r, 325 U.S. 293, 297 (1945). However, “[i]t is
not enough that in some roundabout way the facts supporting the claim may have
reached him. The Commissioner’s attention should have been focused on the
merits of the particular dispute.” Id. To that end, “[t]he evidence should be clear
that the Commissioner understood the specific claim that was made even though
there was a departure from form in its submission.” Id. at 297-98.
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None of the exhibits cited by Ms. Green demonstrate that the IRS knew that
a refund claim was being made. Further, there is no investigation or action taken
by the IRS in response to a refund claim. And because there was no informal
claim filed within the IRS within the statutory period, the administrative claim
letter sent to the IRS on July 18, 2002, was untimely.
The judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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