Redondo v. United States , 542 F. App'x 908 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOMICIANO REDONDO,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5058
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0489, Senior Judge Robert J. Yock.
______________________
Decided: September 13, 2013
______________________
DOMICIANO REDONDO, of Melbourne, Florida, pro se.
ROBERT J. BRANMAN, Attorney, Appellate Section,
Tax Division, United States Department of Justice, of
Washington, DC, for defendant-appellee. With him on the
brief were KATHRYN KENEALLY, Assistant Attorney Gen-
eral, and KENNETH L. GREENE, Attorney. Of counsel was
KENNETH W. ROSENBERG, Attorney.
______________________
2 REDONDO v. US
Before RADER, Chief Judge, PROST, and REYNA, Circuit
Judges.
PER CURIAM.
Plaintiff-Appellant pro se, Domiciano Redondo, ap-
peals a decision of the United States Court of Federal
Claims dismissing, for lack of subject-matter jurisdiction,
Mr. Redondo’s income tax refund claim. Because the
Court of Federal Claims correctly determined that Mr.
Redondo’s claim is untimely, we affirm.
BACKGROUND
Mr. Redondo seeks a refund of federal income tax. He
filed his 2005 tax return and paid taxes for that year on
April 15, 2006. On June 28, 2010, after realizing the
alternative minimum tax had been computed in error in
his 2005 tax return, Mr. Redondo filed an amended 2005
tax return requesting a refund.
At the time he requested a refund, Mr. Redondo also
sought a waiver of the three-year statute of limitations for
seeking a tax refund. He submitted a letter explaining
that he had been unable to amend his 2005 tax return
before the statute of limitations expired because he was
suffering from clinical depression. In support, Mr. Re-
dondo submitted a letter by his doctor, Murray A. Kim-
mel, confirming that Mr. Redondo had been diagnosed
with Meniere’s disease in December 2004 and subsequent-
ly developed depression, for which he received treatment
from January 2005 “until sometime in mid 2006.” A. 25.
On August 12, 2010, the Internal Revenue Service
(“IRS”) disallowed Mr. Redondo’s refund claim as untime-
ly. Mr. Redondo appealed, arguing that he had adequate-
ly established a “financial disability” that tolled the
statute of limitations. A. 31-32.
On February 14, 2011, the IRS sent a letter to Mr.
Redondo noting specific deficiencies in the evidence he
REDONDO v. US 3
had submitted and requesting additional information in
order to evaluate his financial disability. Mr. Redondo
responded by submitting a second letter from Dr. Kimmel
explaining that Mr. Redondo’s “medical problems have
made managing his daily living, finances etc. extremely
difficult,” and confirming that his condition continued
“well through 2006.” A. 36. Mr. Redondo also submitted
to the IRS a letter by two friends, Rickey and ReJonna
Blackmon, who indicated that they had witnessed that
Mr. Redondo’s medical condition had “disabled him from
the end of 2005 until the present” and made him “unable
to care for himself.” A. 37. Mr. and Mrs. Blackmon
described how they had assisted Mr. Redondo with every-
day tasks “[d]uring the years of late 2005 – 2009.” Id.
Mr. Redondo timely filed tax returns for the years 2006,
2007 and 2008 on April 15 of 2007, 2008 and 2009, respec-
tively. A. 39-44.
The IRS’s Appeals Office denied Mr. Redondo’s tax re-
fund claim on April 25, 2011. Mr. Redondo filed a com-
plaint in the Court of Federal Claims on August 6, 2012.
The government moved to dismiss pursuant to Fed. R.
Civ. P. 12(b)(1), and the Court of Federal Claims granted
the government’s motion on December 18, 2012. The
Court of Federal Claims concluded that Mr. Redondo
failed to demonstrate a “financial disability” as required
under section 6511(h) of the Internal Revenue Code, and
that, even if it were to find the statute of limitations had
been tolled during Mr. Redondo’s period of illness (lasting
through 2006, at the latest), Mr. Redondo’s claim would
still be untimely because the statute of limitations would
have run on December 31, 2009, and he filed his amended
tax return on June 28, 2010.
This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
4 REDONDO v. US
DISCUSSION
We review de novo the Court of Federal Claims’ deci-
sion to dismiss for lack of subject matter jurisdiction, and
its underlying factual findings for clear error. See Fer-
reiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir.
2003) (citations omitted). As the plaintiff, Mr. Redondo
bears the burden of establishing jurisdiction. Keener v.
United States, 551 F.3d 1358, 1361 (Fed. Cir. 2009). In
deciding a motion to dismiss for lack of subject matter
jurisdiction, the court must assume all factual allegations
to be true and draw all reasonable inferences in the
plaintiff’s favor. Henke v. United States, 60 F.3d 795, 797
(Fed. Cir. 1995).
A.
Section 6511(a) of the Internal Revenue Code requires
that a taxpayer bring a refund claim “within 3 years from
the time the return was filed or 2 years from the time the
tax was paid,” whichever occurs later. 26 U.S.C. §
6511(a). Mr. Redondo filed his 2005 tax return and paid
taxes on April 15, 2006, which means that April 15, 2009,
was the deadline for him to seek a refund. But Mr. Re-
dondo did not request a refund until June 28, 2010, which
was well beyond the 2009 deadline. Mr. Redondo’s claim,
therefore, must be dismissed unless he was entitled to a
suspension of the statute of limitations.
B.
The statute of limitations can be tolled due to a “fi-
nancial disability” during the time that a taxpayer is
unable to manage financial affairs by reason of a physical
or mental impairment, “which can be expected to result in
death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 26 U.S.C. §
6511(h)(2)(A).
We agree with the Court of Federal Claims that Mr.
Redondo’s allegations fail to establish “financial disabil-
REDONDO v. US 5
ity” within the meaning of section 6511(h). The statute
provides that an individual shall not be considered to be
“financially disabled” unless proof is furnished “in such
form and manner as the Secretary may require.”
§ 6511(h)(2)(A). IRS Revenue Procedure 99-21 specifies
that, to establish “financial disability,” a taxpayer must
submit a written statement by a physician that includes:
(a) the name and a description of the taxpayer’s
physical or mental impairment;
(b) the physician’s medical opinion that the phys-
ical or mental impairment prevented the tax-
payer from managing the taxpayer’s financial
affairs;
(c) the physician’s medical opinion that the phys-
ical or mental impairment was or can be ex-
pected to result in death, or that it has lasted
(or can be expected to last) for a continuous
period of not less than 12 months;
(d) to the best of the physician’s knowledge, the
specific time period during which the taxpayer
was prevented by such physical or mental im-
pairment from managing the taxpayer’s finan-
cial affairs; and
(e) the following certification, signed by the phy-
sician: I hereby certify that, to the best of my
knowledge and belief, the above representa-
tions are true, correct, and complete.
Rev. Proc. 99-21, § 4(1).
In his supplemental statement, Dr. Kimmel described
the symptoms of Meniere’s disease and confirmed that the
disease and Mr. Redondo’s clinical depression “made
managing his daily living, finances, etc. extremely diffi-
cult.” A. 36. The Court of Federal Claims found that Dr.
Kimmel, however, failed to specifically state that Mr.
6 REDONDO v. US
Redondo was “prevented” from managing his financial
affairs, and failed to indicate a specific time period during
which Mr. Redondo was unable to tend to his financial
affairs. Additionally, the Court of Federal Claims found
that Dr. Kimmel’s statements did not include a signed
certification as required by Revenue Procedure 99-21 §
4(1). The Court of Federal Claims accordingly found that
the evidence submitted by Mr. Redondo failed to comply
with the requirements to establish a “financial disability”
under section 6511(h). A. 6-7; see also A. 25, 36. We see
no clear error in the Court of Federal Claims’ findings and
therefore agree with its determination that Mr. Redondo
failed to establish tolling of the statute of limitations.
We also agree with the Court of Federal Claims that,
even if Mr. Redondo were considered “financially disa-
bled” during his period of illness, his tax refund claim
would still be untimely. Reading Mr. Redondo’s com-
plaint in the most favorable view, and drawing all infer-
ences in his favor, we detect no clear error in the Court of
Federal Claims’ conclusion that the evidence submitted by
Mr. Redondo at most would establish that his “financial
disability” ended on December 31, 2006. See A. 8; see also
A. 25 (“[Mr. Redondo’s condition] lasted until sometime in
mid 2006.”); A. 36 (“[Mr. Redondo’s] condition continued
well through 2006.”). 1 As a result, the applicable time
1 Mr. Redondo argues that he suffered from clinical
depression until the spring of 2009. Appellant’s Inf. Br. 1.
The Court of Federal Claims correctly based its finding on
the statements by Dr. Kimmel, which do not support Mr.
Redondo’s allegation. See A. 8, 25, 36. Although Mr. and
Mrs. Blackmon state that Mr. Redondo was disabled
“from the end of 2005 until the present” (A. 37), their
statement is not a “medical statement by a physician.”
Rev. Proc. 99-21.
REDONDO v. US 7
period would only be tolled from April 15 to December 31,
2006. Because the statute of limitations would have
expired three years later, on December 31, 2009, and Mr.
Redondo filed his amended tax return on June 28, 2010,
his claim would still be untimely.
Mr. Redondo argues that the Court of Federal Claims
failed to consider his case before the Financial Industry
Regulatory Authority (FINRA). Appellant’s Inf. Br. at ¶¶
2, 4. It is not clear whether Mr. Redondo raised this
argument below. But even if he did, the Court of Federal
Claims was correct in not considering the FINRA litiga-
tion, as it is irrelevant. There is no evidence, and Mr.
Redondo does not allege, that he was financially disabled
during the FINRA litigation.
While we are sympathetic to Mr. Redondo’s claim, sec-
tion 6511 specifically provides that suspension of the
statute of limitations is appropriate only when a taxpayer
is financially disabled. Because Mr. Redondo has not
established financial disability, the Court of Federal
Claims was correct to dismiss his claim for lack of subject
matter jurisdiction. We lack any discretion to suspend
the statute of limitations for a reason other than financial
disability. See United States v. Brockamp, 519 U.S. 347,
350-54 (1997) (holding that the time periods in § 6511
cannot be equitably tolled).
CONCLUSION
For these reasons, we affirm the judgment of the
Court of Federal Claims dismissing Mr. Redondo’s claim
for lack of subject matter jurisdiction.
AFFIRMED
COSTS
Each party shall bear its own costs.