Martinez v. U.S., 76-1746
Decision Date | 26 April 1979 |
Docket Number | No. 76-1746,76-1746 |
Citation | 595 F.2d 1147 |
Parties | 79-1 USTC P 9384 Richard MARTINEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Paul L. Gabbert, Los Angeles, (argued), for plaintiff-appellant.
Leonard J. Henzke, Jr. (argued), Washington, D. C., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS, ELY and WALLACE, Circuit Judges.
In May, 1973, appellant submitted a claim for refund of taxes using the form supplied for the purpose (IRS Form 843). On it he described the tax as a "confiscation" of $17,500 during September, 1970. On the portion of the form allocated for a statement of his reasons for believing the claim to be meritorious, he stated:
On March 20, 1974, the district director responded by means of a form letter (IRS Form L-92, Rev. 2-69), which identifies the tax as marijuana transfer tax 1 paid on September 2, 1970; it also indicates the amount assessed ($120,000), claimed ($17,500), and paid ($16,400). The letter then states:
In May, 1975, the appellant, now with the assistance of counsel, filed an action in district court for refund of the tax, and alleged that a timely claim had been filed and disallowed, referring to the March 20, 1974, letter.
The government's motion to dismiss the action was granted. The district court pointed to plaintiff's failure to comply with 26 U.S.C. § 7422(a) and Treas. Reg. 301.6402-2(b)(1):
Section 7422(a) states:
Treas. Reg. 301.6402-2(b)(1) states:
Compliance with 26 U.S.C. § 7422(a) and Treas. Reg. 301.6402-2(b)(1), by specifying in detail all grounds and supporting facts upon which a claim for refund is based, is a jurisdictional prerequisite to a suit for refund of taxes, United States v. Felt & Tarrant Co., 283 U.S. 269, 272, 51 S.Ct. 376, 75 L.Ed.2d 1025 (1931); Omnibus Financial Corp. v. United States, 566 F.2d 1097, 1101 (9th Cir. 1977), and unless waived by the government, the taxpayer cannot proceed with his suit for refund. Angelus Milling Co. v. Commissioner of Internal Revenue, 325 U.S. 293, 297-298, 65 S.Ct. 1162, 89 L.Ed. 1619 (1945); Tucker v. Alexander, 275 U.S. 228, 231, 48 S.Ct. 45, 72 L.Ed. 253 (1927); Bear Valley Mutual Water Co. v. Riddell, 493 F.2d 948, 952 (9th Cir. 1974).
Appellant contends that his claim was sufficiently explicit and, even if it were not, that the District Director waived noncompliance with the Rule by considering the claim on its merits. The government, on the other hand, argues that there was no waiver and that the lack of specificity in the claim rendered it fatally deficient, depriving the district court of jurisdiction. 2
Noncompliance with the Rules may be waived, Tucker v. Alexander,275 U.S. 228, 48 S.Ct. 45, 72 L.Ed. 253 (1927). In establishing whether there was a waiver, "The showing should be unmistakable that the Commissioner has in fact seen fit to dispense with his formal requirements and to examine the merits of the claim." Angelus Milling Co. v. Commissioner of Internal Revenue, supra, 325 U.S. at 297, 65 S.Ct. at 1165...
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