Miller v. U.S., No. 84-3896

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore KENNEDY and CONTIE, Circuit Judges, and GIBSON; PER CURIAM
Citation784 F.2d 728
Parties-928, 86-1 USTC P 9261 Brian MILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Docket NumberNo. 84-3896
Decision Date28 January 1986

Page 728

784 F.2d 728
57 A.F.T.R.2d 86-928, 86-1 USTC P 9261
Brian MILLER, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 84-3896.
United States Court of Appeals,
Sixth Circuit.
Jan. 28, 1986.
Decided March 3, 1986.

Page 729

Norman S. Buckvar, Sheldon M. Sager, McCarthy, Lebit, Crystal, Kleinman & Haiman Co., L.P.A., Cleveland, Ohio, for plaintiff-appellant.

Matthew Yackshaw, Trial Atty., U.S. Dept. of Justice, Washington, D.C., Glenn L. Archer, Jr., Michael L. Paup, Tax Div./Dept. of Justice, William S. Estabrook, Nancy Morgan (argued), for defendant-appellee.

Before KENNEDY and CONTIE, Circuit Judges, and GIBSON, District Judge *.

PER CURIAM.

Plaintiff Miller appeals the District Court's grant of defendant's motion to dismiss for lack of subject matter jurisdiction. The District Court held that because the filing of a refund claim is a jurisdictional prerequisite to a tax refund action, 26 U.S.C. Sec. 7422(a) (Internal Revenue Code of 1954, "the Code"), and since plaintiff's claim for refund was not timely filed, the court had no jurisdiction to entertain the suit.

The Internal Revenue Service ("I.R.S.") disallowed losses claimed from one of plaintiff's business activities spanning the years 1976-79. Plaintiff paid deficiency assessments in 1981 and 1982 stemming from the disallowance. Plaintiff alleges that he then executed form 1040X on February 17, 1983, seeking a refund of the $53,663 paid in assessments, plus statutory interest. His attorney at that time states by affidavit that he then mailed the claims to the I.R.S. Cincinnati office in an envelope properly addressed, postage prepaid, by regular mail. Plaintiff contends that he first learned that the claims for refund had not been received by the I.R.S. over a year later, when he filed suit in U.S. District Court. The government stated in its answer that plaintiff had failed to file claims for refund, and offered Certificates of Lack of Record signed by the custodian of federal tax forms and related documents for the Cincinnati Service Center of the I.R.S. At the time the government filed its answer, the three-year statute of limitations for filing refund claims, 26 U.S.C. Sec. 6511, had run on most of plaintiff's claims.

The federal courts exercise jurisdiction over suits for the refund of federal taxes pursuant to 28 U.S.C. Sec. 1346(a)(1). This section, together with 26 U.S.C. Sec. 7422(a), constitutes a waiver by the United States of its sovereign immunity with respect to refund suits by taxpayers to recover internal revenue taxes alleged to have been erroneously or illegally assessed. The Code section provides that no refund suits shall be maintained in federal court until a claim for refund has been filed with the I.R.S. The taxpayer has the burden of establishing the existence of federal court jurisdiction. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280,

Page 730

1285 (9th Cir.1977). The issue in this case is therefore whether the District Court was correct in holding that it had no jurisdiction over plaintiff's claim for refund where the I.R.S. records established that no claim for refund was ever received, but plaintiff offered proof of proper mailing of the claim to the I.R.S. well within the statutory period.

Section 7422(a) provides that no suit for refund shall be maintained in any court "until a claim for refund or credit has been duly filed with the Secretary or his delegate...." The Supreme Court noted in 1916 that the word "filed" had never been defined by Congress, but that the etymology of the word led to the conclusion that filing "is not complete until the document is delivered and received." 1 United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 509, 60 L.Ed.2d 897 (1916). This "physical delivery rule" states the general requirement for filing claims. Phinney v. Bank of the Southwest National Assn., Houston, 335 F.2d 266, 268 (5th Cir.1964). However, some courts have carved out an exception where "a timely and accurate mailing raises a rebuttable presumption that the mailed material was received, and thereby filed." In Re Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir.1974). It is against this background...

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91 practice notes
  • Steele v. United States, Case No. 1:19-cv-705
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 9, 2020
    ...by taxpayers to recover internal revenue taxes alleged to have been erroneously or illegally assessed") (citing Miller v. United States, 784 F.2d 728, 731 (6th Cir.1986)). While § 1346(a)(1) provides recourse against the United States for a taxpayer who alleges his taxes have been erroneous......
  • Boudreau v. United States, BAP NO. RI 19-056
    • United States
    • U.S. Bankruptcy Appellate Panel, First Circuit
    • December 11, 2020
    ...and "alleviate inequities arising from differences in mail delivery from one part of the country to another." Miller v. United States, 784 F.2d 728, 730 (6th Cir. 1986) (citation omitted). " Section 7502(a)(1) carves out an exception to the physical-delivery rule for tax documents sent and ......
  • US v. Cope, Civ. A. No. C86-0051P(J).
    • United States
    • U.S. District Court — Western District of Kentucky
    • October 23, 1987
    ...intervening claim because she did not first pay over her taxes and seek a refund as required by 26 U.S.C. § 7422. Miller v. United States, 784 F.2d 728, 729 (6th Cir. 1986). 26 U.S.C. § 7422 provides no suit or proceeding shall be maintained in any court for the recovery of any internal rev......
  • Investment Research Associates, Ltd. v. Commissioner, Docket No. 43966-85.
    • United States
    • U.S. Tax Court
    • December 15, 1999
    ...but is received by the IRS after the due date, the return is timely filed. See sec. 7502(a); Miller v. United States [86-1 USTC ¶ 9261], 784 F.2d 728, 730 (6th Cir. 1986). However, if the return is mailed after the due date, the return is considered filed on the date the return is actually ......
  • Request a trial to view additional results
91 cases
  • Steele v. United States, Case No. 1:19-cv-705
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 9, 2020
    ...by taxpayers to recover internal revenue taxes alleged to have been erroneously or illegally assessed") (citing Miller v. United States, 784 F.2d 728, 731 (6th Cir.1986)). While § 1346(a)(1) provides recourse against the United States for a taxpayer who alleges his taxes have been erroneous......
  • Boudreau v. United States, BAP NO. RI 19-056
    • United States
    • U.S. Bankruptcy Appellate Panel, First Circuit
    • December 11, 2020
    ...and "alleviate inequities arising from differences in mail delivery from one part of the country to another." Miller v. United States, 784 F.2d 728, 730 (6th Cir. 1986) (citation omitted). " Section 7502(a)(1) carves out an exception to the physical-delivery rule for tax documents sent and ......
  • US v. Cope, Civ. A. No. C86-0051P(J).
    • United States
    • U.S. District Court — Western District of Kentucky
    • October 23, 1987
    ...intervening claim because she did not first pay over her taxes and seek a refund as required by 26 U.S.C. § 7422. Miller v. United States, 784 F.2d 728, 729 (6th Cir. 1986). 26 U.S.C. § 7422 provides no suit or proceeding shall be maintained in any court for the recovery of any internal rev......
  • Investment Research Associates, Ltd. v. Commissioner, Docket No. 43966-85.
    • United States
    • U.S. Tax Court
    • December 15, 1999
    ...but is received by the IRS after the due date, the return is timely filed. See sec. 7502(a); Miller v. United States [86-1 USTC ¶ 9261], 784 F.2d 728, 730 (6th Cir. 1986). However, if the return is mailed after the due date, the return is considered filed on the date the return is actually ......
  • Request a trial to view additional results

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