Gallion v. United States

• Decision Date: 13 February 1968
• Docket Number: No. 24352.,24352.
• Citation: 389 F.2d 522
• Parties: Richard T. GALLION and Audrey R. Gallion, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

389 F.2d 522 (1968)

Richard T. GALLION and Audrey R. Gallion, Appellants, v.UNITED STATES of America, Appellee.

No. 24352.

United States Court of Appeals Fifth Circuit.

February 13, 1968.

Roger L. Davis, Fort Lauderdale, Fla., for appellants.

William A. Meadows, Jr., U. S. Atty., Alfred E. Sapp, Asst. U. S. Atty., Miami, Fla., Mitchell Rogovin, Asst. Atty. Gen., Richard C. Pugh, Lee A. Jackson, David O. Walter, Robert H. Solomon, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before BROWN, Chief Judge, and COLEMAN and SIMPSON, Circuit Judges.

COLEMAN, Circuit Judge:

Section 6532 of the Internal Revenue Code of 1954as amended bySec. 89(b), Technical Amendments Act of 1958, P. L. 85 — 866, 72 Stat. 1606 provides as follows:

"(a) Suits by Taxpayers for Refund.—

(1) General rule.— No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary or his delegate renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary or his delegate to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates."

The question presented by this appeal is: May a taxpayer commence a suit more than two years after notice of disallowance of his claim for refund has been mailed to him, even though the notice was sent directly to him rather than to his attorney, the person to whom he had, in a power of attorney, directed that the notice be sent?

The District Court decided the issue in the negative and we affirm.

Richard T. Gallion, the primary taxpayer, is a resident of Fort Lauderdale, Florida, and with his wife, Mrs. Audrey R. Gallion, timely filed joint income tax returns for the years 1957 and 1958 with the District Director of Internal Revenue at Jacksonville, Florida.Later, a revenue agent audited the taxpayer's books and records.This resulted in asserted deficiencies in income tax for the year 1957 amounting to $3,514.51 and for the year 1958 in the sum of $1,770.48.The asserted deficiencies were promptly paid.

On February 27, 1962, claims for refund were filed with the District Director of Internal Revenue.Simultaneously, the taxpayers filed a power of attorney in the usual form, but which concluded in the following language:

"And we hereby request and direct that all correspondence, documents, warrants or other data in connection with this matter, be sent in care of ROGER L. DAVIS, SUITE 202, SUNRISE PROFESSIONAL BUILDING, FORT LAUDERDALE, FLORIDA."

Mr. Davis was the attorney employed by Mr. Gallion to prepare and handle the applications for refund.

On October 22, 1962, the District Director of Internal Revenue mailed to the taxpayer two certified letters notifying him of disallowance of his claims for refund.The record shows beyond question that he received those letters and signed a certified mail receipt for them.It is equally beyond question that no copies of these letters were sent to or received by the attorney.When the notices of disallowance were received the taxpayers were not sick or hospitalized.Mr. Gallion laid the letters aside.When his discovery deposition was taken on April 6, 1966, he could not remember receiving the letters.His wife found them on February 15, 1965, and forwarded them to Attorney Davis.

On January 19, 1966, the taxpayers commenced this suit for refund of the taxes in question.The Government raised the affirmative defense that more than two years had elapsed since the disallowance of the claims for refund and that the District Court accordingly was without jurisdiction to entertain the suit.After a hearing, the District Court granted the Government's motion to dismiss.

Obviously, the District Director complied literally with the command of the statute, that is, by certified mail he sent notice of disallowance to the taxpayers.He did not send them in care of the attorney but the notices were, in fact, received.That receipt was not called to the attention of the attorney.When Mr. Gallion received the notices he was put on notice, or should have been, that his request as to where they should be sent was not being honored by the District Director.He did nothing.It was not until February 15, 1965, almost twenty eight months later, four months after the statutorily prescribed period for bringing suit had expired, that the wife found the notices in the file at the family home.The attorney was then informed and this suit was filed the following January.

It is equally obvious that the District Director had on file, and ignored or failed to comply with, the request that these notices be sent in care of the attorney.With some equity (if equitable considerations could be permitted to supplant the specific limitations of the statute) taxpayers earnestly insist that the failure of the Director to honor the power of attorney should not be allowed to deprive them of their remedy.

In this scrambled situation, in which all the parties, to some extent, failed to take action which might reasonably have been expected of them, is there any valid room for this Court, in effect, to amend the specific command of the statute by judicially adding the words "or other person designated by him" immediately following "taxpayer" in the next to the last line of the statute?We think not.

We begin our analysis by noting the specific command of the statute that...