Furthermore, as the court in Johnsen v. United States noted, the legislative history of § 6511 "is absolutely devoid of any indication that Congress intended to preclude such equitable tolling in tax refund actions." 758 F. Supp. 834, 835-36 (E.D.N.Y. 1991), quoted in Scott v. United States, 795 F. Supp. 1028 (D. Haw. 1992). We hold that in the absence of congressional action that indicates to the contrary, the statute of limitations provided in § 6511 may be equitably tolled.

A recent District Court opinion from the Second Circuit has applied Irwin to facts similar to the instant case. In Johnsen v. United States, 758 F. Supp. 834 (E.D.N.Y. 1991), the Court held that under Irwin, the plaintiff's mental incompetency equitably tolled the statute of limitation on a tax refund claim. In 1983, the Multzmans overpaid their taxes by approximately $25,000.

Thus, courts have applied the "presumption" enunciated in Irwin in a variety of contexts. Courts are divided, however, as to whether the rebuttable presumption of equitable tolling applies in tax refund cases.See, e.g., Brockamp v. United States, 859 F. Supp. 1283, 1287-89 (C.D.Cal. 1994) (equitable tolling inapplicable), appeal pending, No. 94-56424 (9th Cir.); Scott v. United States, 847 F. Supp. 1499, 1504-07 (D.Haw. 1993) (tolling applies; § 6511 equitably tolled by taxpayer's alcoholism), appeals pending, Nos. 94-15321, 94-15323 (9th Cir.); Wiltgen v. United States, 813 F. Supp. 1387, 1394-95 (N.D.Iowa 1992) (tolling applies; § 6511 equitably tolled by taxpayer's mental illness); Johnsen v. United States, 758 F. Supp. 834, 835-36 (E.D.N.Y. 1991) (same); see generally Ronald A. Stein, "Will Equitable Tolling of the Statute of Limitations Gain Wider Acceptance in Tax Cases?" 81 J. Tax'n 370 (Dec. 1994).

In reliance on Irwin, several federal district courts have permitted equitable tolling of the limitations period in section 6511(a) or (b)(2)(A) in view of a taxpayer's argument that mental incompetence had kept him or her from timely filing a refund claim. See Wiltgen v. United States, 813 F. Supp. 1387 (N.D.Iowa 1992) (section 6511(b)(2)(A)); Scott v. United States, 795 F. Supp. 1028 (D.Hawaii 1992) (stating that equitable tolling of section 6511(a) was at issue, although the facts indicate that section 6511(b)(2)(A) could have been involved as well); Johnsen v. United States, 758 F. Supp. 834 (E.D.N.Y. 1991) (section 6511(b)(2)(A)). In our view, the relevant analysis has been altered yet again by a more recent Supreme Court decision.

This Court relied on the opinion of the United States Supreme Court in Irwin v. Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990), reh'g denied, 498 U.S. 1075, 111 S.Ct. 805, 112 L.Ed.2d 865 (1991) (holding statute of limitations in actions against the government are subject to a rebuttable presumption of equitable tolling applicable to suits against private defendants) and the decisions of several district courts considering the issue. See Scott I, 795 F. Supp. 1028 (permitting equitable tolling of Section 6511's limitations period for severe and chronic alcoholism); Scott v. United States, 847 F. Supp. 1499 (D.Hawaii 1993) ( "Scott II") (same); Wiltgen v. United States, 813 F. Supp. 1387 (N.D.Iowa 1992) (permitting equitable tolling of Section 6511's limitations for schizophrenia); and Johnsen v. United States, 758 F. Supp. 834 (E.D.N.Y. 1991) (permitting equitable tolling of Section 6511's limitations for mental incompetency). This Court rejected the decisions of UnitedStates v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990), reh'g denied, 495 U.S. 941, 110 S.Ct. 2195, 109 L.Ed.2d 523 (1990) (doctrine of equitable recoupment does not support separate suit for refund of earlier paid gift tax after taxpayer settled tax court deficiency proceeding and agreed to pay income tax on transaction), and the decisions of the Eleventh and First Circuits, in Vintilla v. United States, 931 F.2d 1444 (11th Cir. 1991), reh'g, en banc, denied, 942 F.2d 798 (11th Cir. 1991) (refusing to allow equitable tolling in tax refund cases), and Oropallo v. United States, 994 F.2d 25 (1st Cir. 1993) (same).

Id. See also Wiltgen v. United States, 813 F. Supp. 1387 (N.D.Iowa 1992) and Johnsen v. United States, 758 F. Supp. 834 (E.D.N.Y. 1991) (both holding, based on Irwin, that § 6511 can be equitably tolled). Therefore, based on the presumption established by Irwin in favor of the applicability of the principle of equitable tolling, plaintiffs contend that the government has the burden of demonstrating a clear congressional intent that the limitations period set forth in § 6511 may not be equitably tolled and that it has made no such showing.

In addition to the district court's decision in Scott, several other lower courts have extended the doctrine of equitable tolling to tax cases. See, e.g., First Alabama Bank v. United States, 981 F.2d 1226, 1228 (11th Cir. 1993) (assuming under Irwin that "the statute of limitations governing tax refund suits . . . may under some circumstances be equitably tolled"); Wiltgen v. United States, 813 F. Supp. 1387 (N.D.Iowa 1992) (relying on Irwin in applying equitable tolling to tax refund claim); Johnsen v. United States, 758 F. Supp. 834, 835 (E.D.N.Y. 1991) (same). Plaintiff relies on the Supreme Court's statement in Irwin and the post- Irwin cases extending the equitable tolling doctrine to tax cases in opposition to Defendant's motion for summary judgment.

It has also been applied where the claimant is incompetent. See Wiltgen v. United States, 813 F. Supp. 1387, 1394 (N.D.Iowa 1992) (tolling § 6511(b)(2)(A) requirement for mentally ill individual); Johnsen v. United States, 758 F. Supp. 834, 836 (E.D.N.Y. 1991) (tolling § 6511(b)(2)(A) requirement for adjudicated incompetent). In his earlier memorandum, plaintiff seemed to argue that personal hardships, such as his homelessness during much of the relevant period and the theft of his tax records, justified equitable tolling of the limitations period.

13. Another line of cases finds that mental incompetency will toll federal statutes of limitations. E.g., Nunnally v. MacCausland, 996 F.2d 1, 4-5 (1st Cir. 1993) (mental illness may toll 30-day filing period set in Civil Service Reform Act, 5 U.S.C. § 7703); Lopez v. Citibank, N.A., 808 F.2d 905, 906-07 (1st Cir. 1987) (mental incompetency may toll Title VII statute of limitations); Wiltgen v. United States, 813 F. Supp. 1387, 1395 (N.D.Iowa 1992) (mental incompetence may toll statute of limitations in tax refund actions); Johnsen v. United States, 758 F. Supp. 834, 835-36 (E.D.N.Y. 1991) (same); Llewellyn v. Celanese Corp., 693 F. Supp. 369, 379 (W.D.N.C. 1988) (mental incompetency may toll Title VII statute of limitations); Moody v. Bayliner Corp., 664 F. Supp. 232, 235 (E.D.N.C. 1987) (same). 14.

Scott v. United States, 795 F. Supp. 1028 (D.Hawaii 1992). In Scott, the Court relied on three cases, all of which held that mental incompetency may toll federal statutes of limitations: Lopez v. Citibank, 808 F.2d 905 (1st Cir. 1987) (mental incompetency may toll Title VII statute of limitations); Johnsen v. United States, 758 F. Supp. 834 (E.D.N.Y. 1991) (mental incompetency may toll statute of limitation on tax refund actions); and Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244 (S.D.Ohio 1984) (mental incompetency may toll Age Discrimination in Employment Act statute of limitations); see also, Llewellyn v. Celanese Corp., 693 F. Supp. 369 (W.D.N.C. 1988) (mental incompetency may toll Title VII statute of limitations); Moody v. Bayliner Corp., 664 F. Supp. 232 (E.D.N.C. 1987) (same). In Lopez, the First Circuit held that while there is no absolute rule of equitable tolling on the grounds of insanity in Title VII cases, federal courts may toll the applicable statute of limitations on a case-by-case basis.