See O'Brien v. United States, 766 F.2d 1038, 1041 n. 3 (7th Cir. 1985) (disapproving a contrary intimation in Chertkof v. United States, 676 F.2d 984, 991 (4th Cir. 1982)). See also United States v. Wells Fargo Bank, 393 F.2d 272 (9th Cir. 1968), where the estate knew before the filing deadline passed that it would incur attorney's fees but didn't know how much they would be. This much is common ground between Swietlik and the government.
No suit prior to filing claim for refund — No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof. Since, as plaintiffs apparently recognize, § 7422(a) establishes the "undisputed proposition that failure to make a timely refund claim bars any action for such refund," United States v. Wells Fargo Bank, 393 F.2d 272, 273 (9th Cir. 1968); accord, Knights of Pythias Hall Co. v. United States, 345 F. Supp. 680 (D.Del. 1972), aff'd without opinion, 478 F.2d 1398 (3d Cir. 1973), the district court was required to grant the motion to dismiss unless the claim was somehow "timely," notwithstanding the language of § 6511(a). Plaintiffs argued in this court that § 6511(a) is not applicable in terms to the present situation because the moneys paid constituted not "an overpayment of any tax imposed by this title," but rather a completely erroneous payment, relating to no tax imposed by the Code.
While we do not understand taxpayer to rely on the ground that the claim for refund was either formally or informally amended to include the omitted ground, we note in passing that there is nothing in the record to support such a conclusion, which would require that the amendment have occurred before the rejection of the original claims in November, 1964. See United States v. Garbutt Oil Co., 302 U.S. 528, 58 S.Ct. 320, 82 L.Ed. 405 (1938); United States v. Wells Fargo Bank, 393 F.2d 272, 275 (9th Cir. 1968). This is not a situation such as that found in Brown v. United States, 427 F.2d 57 (9th Cir. 1970), where we held that the government, by interjecting a defense at trial different from that relied on in disallowing the claim, waived its right to object to the taxpayer's response, which advanced a ground for recovery different from that set out in the claim for refund, but which was based on the government's new position. Here the government's position has been consistent throughout the entire litigation, and taxpayer has not been confronted with any surprises which would excuse compliance with the regulation.
Under the germaneness doctrine, a formal amendment, if filed after the expiration of the limitations period, must be filed "while the original claim is still being considered by the IRS." Computervision Corp., 445 F.3d at 1371; See also United States v. Wells Fargo Bank, 393 F.2d 272, 275 (9th Cir. 1968) (refund claim "plainly different from that of the original claim" filed outside the statute of limitations and after the original claim was "litigated to completion" was not a valid amendment). "An amendment is ineffective if filed after the original claim has been either allowed or disallowed by the IRS." Computervision Corp., 445 F.3d at 1371.
The filing of a proper and timely claim for refund is an absolute prerequisite to suit under § 7422. See, e.g., Clement v. United States, 472 F.2d 776 (1st Cir. 1973); Bohn v. United States, 467 F.2d 1278 (8th Cir. 1972); National Newark and Essex Bank v. United States, 410 F.2d 789 (Ct.Cl. 1969); United States v. Wells Fargo Bank, 393 F.2d 272 (9th Cir. 1968); Mulcahy v. United States, 388 F.2d 300 (5th Cir. 1968). Plaintiffs may not file suit under § 7422 until they have filed a proper claim for refund after the formal assessment.
Cf. United States v. Memphis Cotton Oil Co., 288 U.S. 62, 72, 53 S.Ct. 278, 282, 77 L.Ed. 619 (1933); Edwards v. Malley, 109 F.2d 640, 645-646 (1st Cir. 1940); Solomon v. United States, 57 F.2d 150, 151 (2d Cir. 1932). The rule that acceptance of a claim in full bars any subsequent amendment has also been applied to more recent cases arising under the 1954 revision of the Internal Revenue Code. Union Pacific R. Co. v. United States, 389 F.2d 437, 182 Ct.Cl. 103 (1968); United States v. Wells Fargo Bank, 393 F.2d 272 (9th Cir. 1968). Cf. Clement v. United States, 405 F.2d 703 (1st Cir. 1969).
An action for the refund of federal taxes may only be commenced after an administrative claim has been filed and disallowed. 26 U.S.C. § 7422(a); United States v. Wells Fargo Bank, 393 F.2d 272, 273 (9th Cir. 1968); Mulcahy v. United States, 388 F.2d 300, 302 (5th Cir. 1968); England v. United States, 261 F.2d 455, 456 (7th Cir. 1958). Plaintiff has not alleged that any, much less all, of the tens of thousands of claimants on whose behalf he allegedly brings this action have exhausted their available administrative remedies.
First National Bank v. United States, 226 F. Supp. 166 (S.D.Fla. 1963), aff'd per curiam, 341 F.2d 737 (5th Cir. 1965). It is of interest that the Court of Appeals for the Ninth Circuit, United States v. Wells Fargo Bank, 393 F.2d 272, 274 (9th Cir. 1968), recognized the existence of a conflict but declined to "enter this controversy" because the claim under examination was not timely filed under either standard. See also United States v. Zacks, 375 U.S. 59, 84 S.Ct. 178, 11 L.Ed.2d 128 (1963).