"[T]he 'variance doctrine' bars a taxpayer from raising issues in a suit against the United States that were not first raised in a claim for refund." Stern v. United States, 949 F. Supp. 145, 146 (E.D.N.Y. 1996). "The taxpayer . . . need only set forth facts in the claim sufficient to enable the IRS to make an intelligent review of the claim."

) Under this doctrine, a taxpayer may not "raise issues in a lawsuit not first raised in a refund claim." Stern v. United States, 949 F. Supp. 145, 150 (E.D.N.Y. 1996) (quoting McMorrow v. United States, 1995 WL 3961 at *1 (N.D.Ill. 1995)). In Stern, a tax refund action, the court dismissed a complaint for lack of jurisdiction where the theory of recovery in the pleading was "wholly inconsistent" with the theory set out in plaintiffs' administrative claim.

It must provide “the agency an adequate opportunity to investigate the legal and factual bases of the claim.” See Angelus Milling Co. v. Commissioner, 325 U.S. 293, 296 (1945); Stern v. United States, 949 F.Supp. 145, 149 (E.D.N.Y.1996).

Finally, the defendant has raised a new argument in its objection: that it is entitled to summary judgment based on the variance doctrine. "The ‘variance doctrine’ bars a taxpayer from raising issues in a suit against the United States that were not first raised in a claim for refund" with the IRS. Carione v. United States , 291 F. Supp. 2d 141, 146 (E.D.N.Y. 2003) (quoting Stern v. United States, 949 F.Supp. 145, 146 (E.D.N.Y. 1996) ). Thus, the taxpayer's "grounds for the refund must be at least impliedly contained in the application for refund."

( See Compl. Ex. C) It would be improper for the court to reduce ConEd's penalty to compensate it for Suares' alleged misconduct where the agency assessing the penalty was never given the opportunity to do so in the first instance. See Stern v. United States, 949 F. Supp. 145, 149 (E.D.N.Y. 1996). C. Exclusion of the Diesel Samples