Your Ins. Needs Agency v. U.S., 00-21051

• Decision Date: 04 December 2001
• Docket Number: No. 00-21051,00-21051
• Citation: 274 F.3d 1001
• Parties: (5th Cir. 2001) YOUR INSURANCE NEEDS AGENCY INC., Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. DAVID BRUCE EARL, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1001

274 F.3d 1001 (5th Cir. 2001)

YOUR INSURANCE NEEDS AGENCY INC., Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

DAVID BRUCE EARL, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

No. 00-21051

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

December 4, 2001

Appeal from the United States District Court For the Southern District of Texas

Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

David Bruce Earl and Your Insurance Needs Agency, Inc. appeal from a grant of summary judgment to the Government on their claims for refunds of over $77,000 in tax overpayments in 1991, 1992, 1993, and 1994, inclusive, brought under 26 U.S.C. § 7422(a). We affirm.

I.

In 1991, Earl, the sole officer and shareholder of Your Insurance, hired David Shand, a certified public accountant, to prepare and file Your Insurance's and his own federal tax returns. Pursuant to Earl's instructions and authorization, Shand prepared and submitted individual income tax returns for Earl for tax years 1991, 1992, and 1993, and payroll tax returns for Your Insurance for six quarters in 1992, 1993, and 1994.

Unbeknownst to Earl, when preparing the taxpayers' returns for each tax year in question, Shand overstated the taxpayers' tax liability on their returns and then either had Earl sign the returns or signed the returns himself with Earl's permission. Shand then produced copies of the returns for Earl, who paid the overstated tax liability as represented to him by Shand. Finally, Shand altered the signed returns to reflect a lesser, correct tax liability and inserted Shand's own office address as the address on the returns. The Internal Revenue Service authorized the Department of the Treasury to issue checks to Earl and Your Insurance for the refunds claimed, and the Treasury then issued and mailed these checks to the address--Shand's--on the returns. Shand received the checks, forged Earl's signature, and negotiated the refund checks, keeping the proceeds himself. According to IRS records, the last refund check to Earl was issued in late May 1994, and the last refund check to Your Insurance was issued in late November 1994.

The IRS eventually discovered this scheme, which Shand perpetrated on many of his clients, but prosecuted and convicted Shand in 1996 for another, unrelated tax fraud scheme. Earl first learned of Shand's conduct and the existence of the refund checks in late 1994, when he was informed of Shand's fraud by Mike Harris, an investigator with the Criminal Investigation Division of the IRS.

Two years later, on February 5, 1997, Earl and Your Insurance requested that the IRS issue replacement checks. The IRS refused on November 26, 1997, stating that the IRS sent the refunds, in good faith, to the address shown on the returns and that Earl and Your Insurance should have sought replacement checks from the Financial Management System, the division within the Department of the Treasury that handles stolen Treasury checks. The IRS further indicated that the Financial Management System would not authorize the IRS to reissue the checks.

On February 25, 1999, Earl and Your Insurance filed separate suits against the United States to recover the tax overpayments. The two cases were ordered consolidated on September 14, 1999, and the parties filed cross-motions for summary judgment. On August 21, 2000, a Magistrate Judge granted summary judgment for the Government in both cases and entered final judgment. The Magistrate Judge denied a Motion to Alter and Amend the Judgment on September 20, 2000. This appeal followed.

II.

We review a grant of summary judgment de novo, applying the same standard as the district court.¹ We may affirm a summary judgment on any ground raised by the movant below and supported by the record, even if it is not the ground relied on by the district court.² Additionally, "[w]e exercise plenary, de novo review of a district court's assumption of subject matter jurisdiction."³

A.

The Secretary of the Treasury is required, under 26 U.S.C. § 6402(a), to issue refunds to taxpayers for overpayments of tax liabilities. 26 U.S.C. § 6511(a) sets a period of limitations for a taxpayer to file a claim for a refund, requiring that a refund claim "be filed by the taxpayer 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, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid."⁴

A suit for a refund is allowed by statute, but must be preceded by a claim filed with the Secretary of the Treasury, pursuant to 26 U.S.C. § 7422(a).⁵ A claim for refund must be filed in accordance with regulations issued by the Secretary of the Treasury.⁶ A civil action for a refund must be brought against the United States.⁷ Jurisdiction lies in the district courts in tax suits under 28 U.S.C. § 1340:

The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade.

Jurisdiction also lies in the district courts, concurrent with the United States Court of Federal Claims, for suits against the United States, under 28 U.S.C. § 1346(a)(1):

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.

Other claims against the United States for over $10,000, however, must be brought in the Court of Federal Claims.⁸

A special scheme is also established by statute for lost or stolen and subsequently forged and paid checks issued by the Treasury. Under 31 U.S.C. § 3343(b):

The Secretary of the Treasury shall pay from the Fund to a payee or special endorsee of a check drawn on the Treasury or a depositary designated by the Secretary the amount of the check without interest if in the determination of the Secretary the payee or special endorse establishes that--

(1) the check was lost or stolen without the fault of the payee or a holder that is a special endorsee and whose endorsement is necessary for further negotiation;

(2) the check was negotiated later and paid by the Secretary or a depositary on a forged endorsement of the payee's or special endorsee's name; and

(3) the payee or special endorsee has not participated in any part of the proceeds of the negotiation or payment.⁹

There is, however, a one-year limit on presentment of claims for replacement of forged checks: "Any claim on account of a Treasury check shall be barred unless it is presented to the agency that authorized the issuance of such check within 1 year after the date of issuance of the check or the effective date of this subsection, whichever is later."¹⁰ Yet the same statutory section directs that "[n]othing in this subsection affects the underlying obligation of the United States, or any agency thereof, for which a Treasury check was issued."¹¹ The Secretary also has a statutory remedy against the depositary bank that paid a Treasury check on a forged indorsement, subject to the statute of limitations provided in 31 U.S.C. § 3712(a)(1).¹²

Finally, the Secretary of the Treasury has also issued regulations governing the mailing of refund checks. 26aC.F.R. §a301.6402-2(f)(1) (2001) provides:

Mailing of refund check. (1) Checks in payment of claims allowed will be drawn in the names of the persons entitled to the money and, except as provided in subparagraph (2) of this paragraph (f), the checks may be sent direct to the claimant or to such person in care of an attorney or agent who has filed a power of attorney specifically authorizing him to receive such checks.

B.

The Government argues here, as it did in the district court, that this suit is a claim for replacement checks under 31 U.S.C. § 3343(b), dressed up as refund claims in order to avoid the statutory jurisdictional and limitations bars to a claim under section 3343(b) against the Check Forgery Insurance Fund. The Government urges that we reverse and remand with instructions that the district court dismiss the consolidated suit for lack of subject-matter jurisdiction.

The response is that, pursuant to 31 U.S.C. § 3702(c)(2), a refund suit under 26 U.S.C. § 7422(a) may be brought even after a claim for a replacement check under section 3343(b) has become untimely under 31 U.S.C. § 3702(c)(1). Yet, for this contention to prevail, there must be an existing "underlying obligation of the United States, or any agency thereof, for which a Treasury check was issued."¹³ The Government counters that no refund is owing, at all events, because the Treasury issued checks in the proper amounts to Earl and Your Insurance at the address provided on the face of their respective returns and the Government thereby fulfilled its underlying obligation to these taxpayers.

We will assume, without deciding, that the district court properly exercised jurisdiction over the taxpayers' claims pursuant to 28 U.S.C. § 1346(a)(1). We choose this course because, in light of 31 U.S.C. § 3702(c)(2), we have no choice but to evaluate the merits of the putative refund suit under 26 U.S.C. § 7422(a) before we may recharacterize it as properly stating only claims for replacement checks under 31 U.S.C. § 3343(b).

Moreover, even if the district court could have subject-matter jurisdiction over a section 3343(b) claim for replacement checks totaling more than $10,000, in spite of the language of 28 U.S.C. § 1346(a)(2), there is no serious dispute that the statutory requirement that a claim for replacement checks be presented to the IRS "within 1 year after the date of issuance of the...