Benenson v. United States

• Decision Date: 13 November 1967
• Docket Number: No. 39,Docket 31107.,39
• Citation: 385 F.2d 26
• Parties: Charles B. BENENSON and Dorothy Cullman, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

385 F.2d 26 (1967)

Charles B. BENENSON and Dorothy Cullman, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 39, Docket 31107.

United States Court of Appeals Second Circuit.

Argued September 22, 1967.

Decided November 13, 1967.

Charles C. Cohen, New York City, for plaintiffs-appellants.

Grant B. Hering, Laurence Vogel, Asst. U. S. Attys., Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, for defendant-appellee.

Before WATERMAN, HAYS and FEINBERG, Circuit Judges.

WATERMAN, Circuit Judge:

This case raises interesting questions regarding the mitigation provisions of the Internal Revenue Code, 26 U.S.C. §§ 1311-1315, the doctrine of equitable recoupment as it has been applied in tax cases such as Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421 (1935), and the relationship between those statutory provisions and that doctrine. We approve the disposition made of these questions by the district judge in his exhaustive opinion, reported at 257 F. Supp. 101 (S.D.N.Y.1966), and affirm the judgment entered below.

The facts were found to be as stipulated by the parties, and hence it will suffice merely to state them generally here. On May 12, 1955, taxpayers entered into a "Livingstone transaction"¹ and as a result they claimed an interest deduction of $67,550 on their joint return for 1955 and reported a long-term capital gain of $60,000 on their return for 1956. It is clear that, aside from any tax consequences, their two-year venture caused taxpayers to be $7,550 out-of-pocket. Upon an audit of appellants' returns for 1955 and 1956, and after a government-proposed agreement whereby the Livingstone transaction would be unraveled was rejected by appellants,² the Government assessed on April 7, 1959 a deficiency of $45,499.67 against taxpayers based upon taxpayers' incorrect deduction of $67,550 for 1955.³ Later in 1959 taxpayers paid to the District Director for the Upper Manhattan District of New York $56,539.49 on account of these 1955 assessed deficiencies, including interest. On May 16, 1961, within two years of the 1959 payment on account of the assessed deficiencies, taxpayers filed with the District Director a claim for a refund of $45,499.67 for 1955, or, in the alternative, a claim for a refund of $14,967.30 for 1956, based on the Government's failure to take into account the $67,550 as a deduction in computing taxpayers' income in either 1955 or 1956. The District Director disallowed on the merits the claim for refund for 1955 in full, and disallowed the claim for refund for 1956 on the theory that any relief for 1956 was time-barred. Thereafter, on May 8, 1964, taxpayers filed this action in the district court. Their complaint repeated the alternate grounds for refund that were involved in the claim before the District Director, and additionally stated as a further ground for relief, that, to the extent the 1956 claim for refund might not have been filed within the time limit of Code Section 6511, 26 U.S.C. § 6511, the refund should nevertheless be granted under the mitigation provisions. Later appellants were given leave to amend their complaint in order also to include a request for relief under the doctrine of equitable recoupment.

In dismissing taxpayers' complaint Judge Levet held that: (1) the "Livingstone transaction" involved was a "sham" and that no bona fide indebtedness was created thereby; therefore taxpayers are not entitled under any theory to deduct the $67,550 which they claimed as interest upon indebtedness; (2) inasmuch as taxpayers failed to file a timely formal or informal claim for refund for 1956 they are barred by the statute of limitations from obtaining a refund in that year; (3) the mitigation provisions can afford taxpayers no relief at this time because as yet there has been no "determination" with respect to taxpayers' tax liability for 1955 as is required in 26 U.S.C. § 1311; and (4) as taxpayers will have an adequate statutory remedy under the mitigation provisions as soon as the proper procedures are followed, they are not entitled to equitable recoupment. In their notice of appeal, pertinent parts of which are set out in the margin,⁴ taxpayers specifically state that they are raising on appeal only questions directed toward the district court's treatment of the mitigation and recoupment issues. Not altogether altruistically, as we shall see later, they specifically disclaim any intention to bring up for review the holding that taxpayers are not entitled to an interest deduction in 1955. By having thus acquiesced explicitly in the judgment of Judge Levet and implicitly in the judgment of five other courts, including this one, that have decided exactly the same interest deduction question,⁵ taxpayers have successfully deprived us of jurisdiction to review that part of the decision. See 28 U.S.C. § 2107; Fed.R. Civ.P. 73(b); Whitehead v. American Security & Trust Co., 109 U.S.App.D.C. 202, 285 F.2d 282, 286 (1960); Donovan v. Esso Shipping Co., 259 F.2d 65, 68 (3 Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959); Gannon v. American Airlines, Inc., 251 F.2d 476, 482 (10 Cir. 1957); Long v. Union Pacific R.R., 206 F.2d 829, 830 (10 Cir. 1953). Moreover, it appears from the notice of appeal and from appellants' brief that taxpayers do not contest the district court's holding that the claim for refund for 1956 was time-barred.⁶ Hence we proceed directly to a consideration of the confusing problems of mitigation and recoupment involved in this case.

The mitigation provisions were inserted into the Internal Revenue Code in 1938 in order to eliminate a double tax or a double deduction or an inequitable avoidance of tax; they permit, in certain specified circumstances, the correction of an error which had been made in the inclusion or exclusion of income, or in the allowance or disallowance of a deduction, or in the tax treatment of a transaction affecting the basis of property, even though the statute of limitations had run on either the taxpayer or the Government in the year of the error. See Yagoda v. Commissioner of Internal Revenue, 331 F.2d 485, 488 (2 Cir.), cert. denied, 379 U.S. 842, 85 S.Ct. 81, 13 L.Ed. 2d 48 (1964); 2 Mertens, Law of Federal Income Taxation § 14.01 (Zimet & Stanley ed. 1967). A distinct need for such relief had been demonstrated. Judicial application of the doctrines of estoppel, recoupment, and set-off — the prior method of mitigating the inequities which arose when, as to the treatment of a particular item in an unclosed year, either the Commissioner or the taxpayer successfully maintained a position inconsistent with an erroneous treatment of the same item in a year already closed by the operation of some rule of finality or by the running of the statute of limitations — had been neither uniform nor systematic. See S.Rep.No. 1567, 75th Cong., 3d Sess. 49 (1938). Congress decided that legislation was needed to "supplement the equitable principles applied by the courts and to check the growing volume of litigation by taking the profit out of inconsistency whether exhibited by taxpayers or revenue officials and whether fortuitous or the result of design." Ibid. Legislation was forthcoming which soon found its way into I.R.C.1939 as Section 3801 of that Code. The 1939 Code provision was later expanded and, as so expanded, became Sections 1311-1315 of I.R.C.1954, 26 U.S.C. §§ 1311-1315.

In order to qualify in the present case for mitigation under these sections as to the alleged error in their 1956 return, the appellants must satisfy each of the several threshold requirements which appear in Sections 1311-1315. Among these is the requirement that there be a "determination" in one year (here 1955) the effect of which demonstrates that a position taken by the Commissioner or a taxpayer in another tax year (here 1956) was erroneous where, at the time of the "determination" the other tax year is closed because of the running of the statute of limitations. When faced with the question whether there had been such a "determination" in this case, the district court held, and we think correctly, that there had not been one, inasmuch as the district court resolution of the interest deduction question could be appealed to our court up to sixty days after the entry of judgment in the district court. "Determination" is defined quite explicitly in § 1313(a) as meaning:

(1) a decision by the Tax Court or a judgment, decree, or other order by any court of competent jurisdiction, which has become final * * *. (Emphasis supplied.)

Appellants on this appeal concede that the district court was correct in holding that the necessary "determination" did not become final when the district court's judgment was entered — but they contend that, as they specifically excluded the interest deduction issue from this appeal and as their time for appealing that issue has now run out, our court does have before it the required "determination." Thus, appellants claim, we may proceed to decide whether appellants are entitled to a refund under the mitigation provisions. We disagree.

We are less certain than are appellants that the "determination" requirement has now been fulfilled;⁷ but, as we view this case, we need not decide that issue. The Government contends, and we agree, that another of the threshold requirements, the requirement contained in Section 1314, has not been fulfilled here. Section 1314(b) clearly provides that the adjustment authorized by the mitigation provisions shall be made:

* * * by assessing and collecting, or refunding or crediting, the amount thereof in the same manner as if it were a deficiency determined by the Secretary or his delegate with respect to the taxpayer as to whom the error was made or an overpayment claimed by such taxpayer, as the case may be, for the taxable year or years with respect to which an amount is ascertained under subsection (a), and as if on

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