Radioshack Corp. v. U.S., 2008-5106.

Citation566 F.3d 1358
Decision Date26 May 2009
Docket NumberNo. 2008-5106.,2008-5106.
PartiesRADIOSHACK CORPORATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

A. Duane Webber, Baker & McKenzie LLP, of Washington, DC, argued for plaintiff-appellant.

Ellen Page DelSole, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Nathan J. Hochman, Assistant Attorney General, Gilbert S. Rothenberg, Acting Deputy Assistant Attorney General, and Teresa E. McLaughlin, Attorney.

Before MAYER, GAJARSA, and LINN, Circuit Judges.

GAJARSA, Circuit Judge.

RadioShack Corp. appeals from the partial final judgment of the Court of Federal Claims dismissing RadioShack's claim for refund of certain 1996 taxes ("1996 claim") under Rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC)1 for lack of jurisdiction. Because we agree with the Court of Federal Claims that the 1996 claim was not timely filed by RadioShack with the IRS pursuant to 26 U.S.C. § 6511(a), that RadioShack had thus not met the requirements of 26 U.S.C. § 7422, and therefore that the court lacked jurisdiction over the 1996 claim, we affirm.

BACKGROUND

The underlying claims in this case arose out of the payment by RadioShack and others of the Federal Communications Excise Tax. 26 U.S.C. §§ 4251-4254. This excise tax was applied to long distance telephone usage that was billed on the basis of time and distance. 26 U.S.C. § 4252(b)(2). For nearly a century, this tax was paid by telephone users to telephone service providers who, in turn, filed returns and paid over the taxes collected to the Internal Revenue Service (IRS). In the late 1990s, most telephone service providers transitioned to a time-only billing model, such that the excise tax no longer applied. Nonetheless, the service providers and, ultimately, the IRS continued to collect the tax. This practice continued in the face of countless lawsuits2 until May 2006.

In January 2006, RadioShack filed a class action in the Court of Federal Claims on behalf of itself and similarly situated taxpayers, seeking a refund of overpaid excise taxes. RadioShack and the United States cross-moved for a summary determination whether refund claims related to the excise tax were subject to any statute of limitations. Subsequently, on October 4, 2006, RadioShack filed the 1996 claim with the IRS, which the IRS promptly denied as untimely. RadioShack then amended its complaint to specifically identify the 1996 claim as well as a similarly denied claim for refund of taxes paid in 2002. The United States moved to dismiss the 1996 claim as time-barred.

The Court of Federal Claims held that RadioShack had failed to file the 1996 claim with the IRS within the time limits imposed by 26 U.S.C. § 6511(a) and that RadioShack was thus barred from bringing suit pursuant to 26 U.S.C. § 7422. The trial court thus dismissed the 1996 claim for lack of jurisdiction pursuant to RCFC 12(b)(1) and directed entry of partial judgment, which it certified for immediate appeal under RCFC 54(b).3 RadioShack timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

This court reviews de novo the Court of Federal Claims's decision to dismiss for lack of jurisdiction. See Inter-Coastal Xpress, Inc. v. United States, 296 F.3d 1357, 1365-66 (Fed.Cir.2002). The jurisdiction of the Court of Federal Claims is defined by the Tucker Act, which gives the court authority to render judgment on certain monetary claims against the United States. 28 U.S.C. § 1491(a)(1). As the Supreme Court has recognized, however, "[n]ot every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act." United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The Court has cautioned that waivers of the United States's sovereign immunity are to be construed narrowly: "[W]e may not enlarge the waiver beyond the purview of the statutory language. Our task is to discern the `unequivocally expressed' intent of Congress, construing ambiguities in favor of immunity." United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995) (citation omitted) (discussing 28 U.S.C. § 1346(a), which provides the United States district courts with concurrent jurisdiction over tax refund suits). Indeed, in the context of tax refund suits, the Court has held that the Court of Federal Claims's Tucker Act jurisdiction is limited by the Internal Revenue Code, including 26 U.S.C. § 7422(a). See United States v. Clintwood Elkhorn Mining Co., ___ U.S. ___, 128 S.Ct. 1511, 1517, 170 L.Ed.2d 392 (2008); United States v. A.S. Kreider Co., 313 U.S. 443, 447-48, 61 S.Ct. 1007, 85 L.Ed. 1447 (1941).

Section 7422(a) states:

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 ... or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

26 U.S.C. § 7422(a). Sections 6511(a) and (b), in turn, provide for the filing of such claims with the IRS. They require in pertinent part:

Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall 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. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.

* * *

No credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) for the filing of a claim for credit or refund, unless a claim for credit or refund is filed by the taxpayer within such period.

26 U.S.C. § 6511(a), (b)(1). As the Supreme Court has reiterated, §§ 6511 and 7422 should be read together to bar a suit for refund in any court "`unless a claim for refund of a tax has been filed within the time limits imposed by § 6511(a).'" Clintwood, 128 S.Ct. at 1515 (quoting United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990)). In Clintwood, the Court clearly stated that a taxpayer who has not filed a timely administrative refund claim with the IRS "may bring `[n]o suit' in `any court' to recover `any internal revenue tax' or `any sum' alleged to have been wrongfully collected `in any manner.' Five `any's' in one sentence and it begins to seem that Congress meant the statute to have expansive reach." 128 S.Ct. at 1516. The Court continued:

[W]e cannot imagine what language could more clearly state that taxpayers seeking refunds of unlawfully assessed taxes must comply with the Code's refund scheme before bringing suit, including the requirement to file a timely administrative claim.

Id. Clintwood thus reinforces earlier pronouncements of the Court that "[a]s a statute of limitations, § 6511(a) does narrow the waiver of sovereign immunity ... by barring the tardy." Williams, 514 U.S. at 534 n. 7, 115 S.Ct. 1611.

RadioShack argues that, because it was not required either to file a return or to pay the excise tax by means of a stamp, the time limits set forth in § 6511(a) do not apply. The Court of Federal Claims, however, held that the Federal Communications Excise Tax is the type of tax for which a return must be filed by someone— i.e., the telephone carriers who collect and remit the tax—and, therefore, that § 6511(a)'s time limits apply to any claim related to the excise tax. We agree with the Court of Federal Claims.

This case is controlled by our predecessor court's holdings in Alexander Proudfoot Co. v. United States, 197 Ct.Cl. 219, 454 F.2d 1379 (1972), and J.O. Johnson, Inc. v. United States, 201 Ct.Cl. 315, 476 F.2d 1337 (1973). Specifically, in Alexander Proudfoot, the Court of Claims held, albeit in a footnote: "§ 6511 was obviously intended to cover all taxes, whether or not a return is required, and its wording can easily carry that understanding since it expressly provides for the case where `no return was filed by the taxpayer.'" 454 F.2d at 1382 n. 7. A year later, the court in J.O. Johnson, 476 F.2d at 1338, 1340-41, defended and reaffirmed the "footnote holding" of Alexander Proudfoot, and explained that "[a]llowing plaintiffs [to avoid the time limitations of § 6511] where no clear reason for such exceptional treatment is apparent in either the Code or in fact, would seem to run contrary to the usual Code pattern and apparently congressional intent as well." Id. at 1341. We are bound by our precedent and must hold that all claims for refund related to the Federal Communications Excise Tax are covered by § 6511(a). Therefore, although RadioShack was not itself obligated to file a return in respect to the excise tax, the time limits of § 6511(a) nonetheless apply. RadioShack's 1996 claim is time-barred.

We note further that our conclusion is consistent with our sister circuits' treatment of claims for refund made by taxpayers who were not themselves obligated to file returns. We find their stated reasoning persuasive. In Little People's School, Inc. v. United States, the First Circuit considered the application of §§ 6511(a) and 7422(a) to a non-profit entity that had mistakenly paid unemployment taxes and subsequently had filed a claim for refund with the IRS, which the IRS disallowed as untimely. 842 F.2d 570, 570-71 (1st...

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