Opinion
Civil Action No. 99 So. 1054
September 29, 2000
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE CONCERNING DEFENDANT'S MOTION TO DISMISS
This matter is before the Court on the defendant's Motion to Dismiss (filed August 4, 1999). The plaintiffs have filed a Response. Pursuant to 28 U.S.C. § 636 (b)(1)(A) and (B), and FED. R. CIV. P. 72(a) and (b), this matter has been referred to Magistrate Judge O. Edward Schlatter. For the reasons discussed below, I recommend that the Motion to Dismiss be GRANTED, and that the plaintiff's Complaint and this case be DISMISSED.
In their Complaint, the plaintiffs seek refund from the Internal Revenue Service of taxes they say the paid erroneously for the tax year 1993. In April, 1997, the plaintiffs filed an amended tax return. In their amended return, the plaintiffs claimed they erroneously paid income tax on disability income received in 1993, and they sought refund of the taxes erroneously paid. The IRS disallowed the refund claim because the plaintiffs' amended return was filed late. Complaint, Exhibit 2. The plaintiffs then filed this suit to recover the refund.
The United States moves to dismiss for lack of subject matter jurisdiction, arguing that the United States has not waived sovereign immunity as to the plaintiffs' claim.
It is elementary 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." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-770, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969).
U.S. v. Mitchell, 455 U.S. 535, 538 (1980). To maintain a suit against the United States, a plaintiff must show a waiver of sovereign immunity.
With respect to a tax refund suit, a taxpayer can show a waiver of sovereign immunity only if the taxpayer has filed a timely claim for refund with the IRS. 26 U.S.C. § 6511(b)(1) provides that no credit or refund shall be allowed if the period of limitations has expired, unless the claim was filed within the period of limitations. It is undisputed that a three year statute of limitations applies to claims for refund of overpayment of a tax for which the taxpayer must file a return. 26 U.S.C. § 6511(a). It also is undisputed that this three year period of limitations began to run on April 15, 1994, and expired on April 15, 1997. The plaintiffs claim their refund claim was filed timely. The IRS claims the plaintiffs' refund claim was not filed timely.
In support of its position, the U.S. has filed the Declaration of Robert J. Varra. Mr. Varra says he is a Revenue Officer with the IRS, and that he has access to administrative records for taxpayers. He says he reviewed the plaintiffs' administrative file for the 1993 tax year. Attached to his declaration are a copy of the plaintiffs' amended tax return, and a copy of the envelope in which the IRS received the amended return. Mr. Vara indicates that he obtained these documents from the plaintiffs' administrative file. The envelope in which Mr. Vara says the amended return was received shows two postmarks indicating a mailing date of April 18, 1997, three days after the expiration of the three year statute of limitations.
In their response, the plaintiffs argue that their amended return was mailed prior to April 15, 1997. Attached to the plaintiffs' response is the affidavit of plaintiff Faye Boatwright. Ms. Boatwright says: "Due and owing to the fact that my husband was always concerned about deadlines, I am sure that immediately after I signed the Form 1040X on April 7, 1997, my husband took the return to the United States Post Office for mailing." Affidavit, ¶ 3.
Title 26 U.S.C. § 7502(a)(1) provides that the date of delivery of a return or other document required to be filed with the IRS shall be deemed to be "the date of the United States postmark stamped on the cover in which such return . . . or other document . . . is mailed." Section 7502(c) also provides provisions for the use of registered and certified mail to provide taxpayers an independent means of proving the date on which a document was mailed.
The scheme of the statute and implementing regulations is designed to avoid testimony as to date of mailing in favor of tangible evidence in the form of an official government notation. When a legible postmark appears on an envelope no evidence that the petition was mailed on some other day will be allowed.
Shipley v. Commissioner of Internal Revenue, 572 F.2d 212, 214 (9th Cir. 1978) (citations omitted).
(I)n section 7502 Congress dealt with issues of proof, and determined that a postmark is evidence verifiable beyond any self-serving testimony of a taxpayer who claims that a document was timely mailed.
Wood v. Commissioner of Internal Revenue, 909 F.2d 1155, 1161 (8th Cir. 1990).
Here, the United States has provided credible and admissible evidence of the date of the postmark on the envelope used to mail the plaintiffs' amended tax return. The postmark date is April 18, 1997. With evidence of the postmark in the record, § 7502 bars consideration of Faye Boatwright's statement that she is sure her husband mailed the return prior to April 15, 1997. Thus, for the purpose of the Motion to Dismiss, there is no question that the plaintiffs' amended return was mailed outside of the three year period of limitations applicable to their claim for refund of overpayment of tax. Because the plaintiffs' claim was mailed outside the applicable period of limitations, 28 U.S.C. § 6511 bars payment of a refund to the plaintiffs. The United States has not waived sovereign immunity for the plaintiffs' claim founded on an untimely claim for refund of overpayment of tax. This Court does not have subject matter jurisdiction over the plaintiffs' claim.
THEREFORE IT IS RECOMMENDED that the defendant's Motion to Dismiss be GRANTED, and that the plaintiffs' Complaint and this action be DISMISSED.