38 F.3d 473 (9th Cir. 1994), 93-35000, Miller v. United States

Docket Nº:93-35000.
Citation:38 F.3d 473
Party Name:Robin & Diane MILLER, husband and wife, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:October 20, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 473

38 F.3d 473 (9th Cir. 1994)

Robin & Diane MILLER, husband and wife, Plaintiffs-Appellants,


UNITED STATES of America, Defendant-Appellee.

No. 93-35000.

United States Court of Appeals, Ninth Circuit

October 20, 1994

Argued and Submitted June 7, 1994.

Page 474

F. Michael Kovach, Seattle, WA, for plaintiffs-appellants.

Michael L. Paup and Robert Metzler, Asst. U.S. Attys., Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, WIGGINS, and THOMPSON, Circuit Judges.

WIGGINS, Circuit Judge:

Robin and Diane Miller ("Taxpayers") seek a refund of federal income taxes withheld from their wages. They filed an action in district court pursuant to 28 U.S.C. Sec. 1346(a)(1). The district court dismissed the action as untimely. We have jurisdiction over the final judgment pursuant to 28 U.S.C. Sec. 1291 and affirm the district court.


Taxpayers failed to prepare a timely income tax return for tax year 1986. In either June 1989 or February 1990, the Internal Revenue Service prepared a substitute return for that year pursuant to 26 U.S.C. (I.R.C.) Sec. 6020(b). The IRS mailed a notice of deficiency to Taxpayers on August 23, 1989. Taxpayers did not prepare a return for 1986 until April, 1990. It was mailed on April 16, 1990 and received at the Internal Revenue Service Center on April 18. That filing was deficient because it lacked a necessary schedule (pertaining to partnership losses) and because a photocopy, with only a photocopied signature, was mailed. In February 1991, a corrected return was filed.

Both filings by Taxpayers asserted a claim for a refund. The IRS issued a notice of disallowance of claim regarding the April 1990 return on May 23, 1991. Taxpayers filed suit in the Western District of Washington in April 1992. The district court granted the government's motion to dismiss for lack of jurisdiction because it concluded that, under I.R.C. Sec. 6511(a), there had been no timely claim for a refund. A timely claim is a jurisdictional prerequisite to an action for recovery of taxes paid. I.R.C. Sec. 7422(a); Boyd v. United States, 762 F.2d 1369, 1371 (9th Cir.1985); Northern Life Ins. v. United States, 685 F.2d 277, 279 (9th Cir.1982). The district court decided that the claim had to be filed within two years of the payment of the taxes because the return was filed after April 16, 1987, the due date for 1986 returns. The court also decided, in the alternative, that the claim was filed upon receipt, not mailing, and therefore none of the taxes at issue could be recovered because they had been paid more than three years before the claim.


The Internal Revenue Code provides that a claim for a refund is timely if filed

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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 two years from the time the tax was paid.

I.R.C. Sec. 6511(a)...

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