RHI Holdings, Inc. v. U.S.

• Citation: 1998 WL 217867,142 F.3d 1459
• Decision Date: 05 May 1998
• Docket Number: No. 97-5116,97-5116
• Parties: -1789, 98-1 USTC P 50,393 RHI HOLDINGS, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1459

142 F.3d 1459

81 A.F.T.R.2d 98-1789, 98-1 USTC P 50,393

RHI HOLDINGS, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 97-5116.

United States Court of Appeals, Federal Circuit.

May 5, 1998.

Roy H. Crosley, Fairchild Corporation, of Chantilly, VA, for plaintiff-appellant.

Annette M. Wietecha, Attorney, Appellate Section, Tax Division, U.S. Department of Justice, of Washington, DC, for defendant-appellee. With her on brief were Loretta C. Argrett, Assistant Attorney General, and Richard Farber, Attorney Of counsel was Charles Bricken, Attorney, Appellate Section, U.S. Department of Justice.

Before: CLEVENGER, BRYSON, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

In this appeal from the decision in RHI Holdings, Inc. v. United States, 37 Fed. Cl. 703 (1997), No. 95-CV-827, RHI Holdings, Inc. (RHI) appeals the determination of the Court of Federal Claims that RHI was not entitled to a refund of the "hot interest" RHI had paid under 26 U.S.C. § 6621(c) (1994). We find that the trial court should not have reached the merits of this controversy without first considering whether or not it had jurisdiction over RHI's claim. Jurisdiction does not exist in the Court of Federal Claims over the claim because it is barred by the applicable statute of limitations. Therefore we vacate the trial court's decision and remand with instructions to dismiss the case for lack of jurisdiction.

I

In 1990, the IRS determined that RHI was liable for certain corporate income tax underpayments for tax years 1983 and 1984. The IRS began assessing interest on the underpayments on January 1, 1991. RHI paid the underpayments with interest in 1993, and now sues to recover all "hot interest" it paid for the period between January 1, 1991 and September 30, 1991. Hot interest is the increased rate of interest assessed to "large corporate underpayments" of corporate income tax according to 26 U.S.C. § 6621(c). The interest rate of three percent is increased to five percent for large corporate underpayments when the IRS satisfies certain notice requirements as specified in 26 U.S.C. § 6621(c)(2)(A).

After making payment, RHI filed two Forms 2297, "Waiver of Statutory Notification of Claim Disallowance," for tax years 1983 and 1984 on April 27, 1993. ¹ Normally, a taxpayer files a claim for refund with the IRS before suit may be filed against the IRS for refund of taxes. See 26 U.S.C. § 7422 (1994). Then the taxpayer has two years from the date the notice of disallowance of the refund claim is mailed to file suit. See 26 U.S.C. § 6532 (1994). However, if a taxpayer files a waiver of the notice of disallowance, then the two year statutory period begins when the waiver is filed. See 26 U.S.C. § 6532(a)(3). Since RHI filed its waivers on April 27, 1993, it had to file suit by April 27, 1995. However, RHI did not file its refund suit until December 15, 1995.

Some of the actions of the IRS after RHI filed may have led RHI to believe that it had more time to file suit. Upon receiving the Forms 2297 in April 1993, the IRS issued a proposed disallowance of plaintiff's claim on June 17, 1993, and included a new Form 2297 to be completed by the taxpayer. See 37 Fed. Cl. at 705. RHI responded on June 23, 1993, by requesting a conference. See 37 Fed. Cl. at 705. The IRS responded on June 29, 1993, by asking whether the claim was a request for refund or a request for interest abatement. See 37 Fed. Cl. at 705. In that June 29, 1993, communication, the IRS included original copies of both RHI's original claim form, stamped "Received 4-27-93" and the original waivers, which were not stamped. See 37 Fed. Cl. at 705. The IRS finally issued a disallowance for RHI's claims on December 22, 1993.

Regardless of any confusion that the IRS's actions may have caused RHI, unless the statute of limitations, 26 U.S.C. § 6532, contains an implied equitable exception, considerations of equitable principles are not appropriate. If the statute contains an implied equitable exception, then the Government may be estopped from asserting the statute of limitations based on the IRS's actions in regards to RHI's claim. However, if the statute does not contain an implied equitable exception, then RHI's claim was untimely, and should have been dismissed for lack of jurisdiction.

II

All federal courts are courts of limited jurisdiction, and it is the duty of a federal court to examine its jurisdiction over every claim before it assumes jurisdiction over the claim. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978) ("It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded."). In United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), the Supreme Court explicitly held that a waiver of sovereign immunity by the United States is jurisdictional. The Supreme Court stated that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Sherwood, 312 U.S. at 586, 61 S.Ct. at 769-70 (citations omitted). Thus the jurisdiction of the Court of Federal Claims (successor to the Court of Claims discussed in Sherwood ) is prescribed by the metes and bounds of the United States' consent to be sued in its waiver of immunity. See Sherwood, 312 U.S. at 586, 61 S.Ct. at 769-70.

Waivers of sovereign immunity must be explicit, and cannot be implied. See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976) (citing United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969)); see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93, 111 S.Ct. 453, 456, 112 L.Ed.2d 435 (1990); cf. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996). Any statute which creates a waiver of sovereign immunity must be strictly construed in favor of the Government. See Sherwood, 312 U.S. at 590, 61 S.Ct. at 771. The jurisdiction of the Court of Federal Claims in this case is governed by the Tucker Act, 28 U.S.C. § 1491 (1994). While the Tucker Act creates jurisdiction for money claims against the Government in the Court of Federal Claims, it does not create a cause of action for those claims. The substantive basis for the action must be found elsewhere. ²

The statute of limitations applying to RHI's refund claim filed in the Court of Federal Claims is 26 U.S.C. § 6532. The question presented in this case is whether the Government is estopped from asserting the two year statute of limitations triggered by the filing of a waiver under 26 U.S.C. § 6532(a)(3). The Supreme Court has held in Irwin, 498 U.S. at 93-94, 111 S.Ct. at 456, that although a statute of limitations is a waiver of sovereign immunity and must be strictly construed, it may be subject to equitable tolling if there is an implied equitable tolling exception in the statute of limitations. Here, the issue is equitable estoppel, not tolling. This distinction is not significant since Irwin described one instance of allowable equitable tolling as "where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin, 498 U.S. at 96, 111 S.Ct. at 458. RHI essentially has alleged that the actions of the IRS in returning the original waivers, and later issuing the notice of disallowance, confused RHI into allowing the statutory period to lapse. The confusion created by the IRS according to RHI should be considered by this court as "misconduct," thereby estopping the United States from asserting the statute of limitations. Even if we accept this interpretation of the facts, we must follow the test prescribed in Irwin, namely that an implied equitable exception must be found in the statute of limitations before equitable principles may be applied to a waiver of sovereign immunity.

A recent decision by the Supreme Court is instructive of when an implied equitable exception can be found in a statute of limitations in the federal tax code. In United States v. Brockamp, the court described the Irwin inquiry predicate to the application of equitable principles as determining if the statute of limitations "contains an implied 'equitable tolling' exception." United States v. Brockamp, 519 U.S. 347, ----, 117 S.Ct. 849, 850, 136 L.Ed.2d 818 (1997). If the statute of limitations in this case contains such an implied equitable exception, then this court would need to evaluate the facts presented to us to determine if RHI has made out a basis for equitable estoppel. ³ However, if there is no implied equitable exception in the statute of limitations, then regardless of the facts presented, there can be no equitable tolling or estoppel.

The statute in question, 26 U.S.C. § 6532(a), does not contain an implied "equitable" exception under the Supreme Court's analysis delineated in Brockamp. Section 6532(a) contains the following language:

(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 ... after the expiration of 2 years from the date of mailing ... of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.

(2) Extension of time. The 2-year period prescribed in paragraph (1) shall be extended for such period as may be agreed upon in writing between the taxpayer and the Secretary.

(3) Waiver of notice of disallowance. If any person files a written waiver of the requirement that he be mailed a notice of disallowance, the 2...