Baley Allred, III v. United States ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0269n.06
No. 16-5242 FILED
May 09, 2017
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
BALEY F. ALLRED, III and BRENDA L. )
ALLRED, )
)
Plaintiffs-Appellants, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
UNITED STATES OF AMERICA, ) DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
)
BEFORE: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiffs Baley and Brenda Allred brought this action to recover a refund for an
overpayment of income taxes. After the IRS denied their refund claim as untimely, they sued
defendant United States of America alleging their claim was timely, or, in the alternative, that
they were entitled to recover their refund under the mitigation provisions of 26 U.S.C. §§ 1311–
14. The district court disagreed and granted defendant’s motion to dismiss. Finding no
reversible error, we affirm the judgment of the district court.
I.
Plaintiff Baley Allred and non-party Fred Bayne each owned a fifty-percent member
interest in Home Health Care of Middle Tennessee, LLC. After Bayne passed away in February
2007, Allred purchased Bayne’s member interest. As Allred was now the sole member of the
No. 16-5242, Allred, et al. v. United States
LLC, the LLC’s 2007 federal tax return reflected that he had received all of the LLC’s income
for that year. From 2007 onward, plaintiffs reported all of the LLC’s income on their own
individual returns.
Bayne’s estate subsequently sued Baley Allred, disputing his right to acquire Bayne’s
member interest in the LLC. Pending the outcome of that litigation, the LLC and plaintiffs each
filed amended tax returns for the years 2007–13, reflecting Baley Allred’s ownership interest of
only fifty percent of the LLC. Consistent with the LLC’s original returns, the estate did not
report any income from the LLC, or pay any related income tax, during this time.
The estate eventually prevailed in the litigation, but the parties could not reach an
agreement that would allow plaintiffs to avoid converting their amended returns into refund
claims. Accordingly, plaintiffs began submitting refund claims for the amended returns they had
filed during litigation. The estate meanwhile filed amended returns for 2007–13, reporting fifty
percent of the LLC’s income and paying the resulting tax. The net result was the reallocation of
income and income tax payments between plaintiffs and the estate for those tax years, except for
2009.
On October 10, 2013, five days before the October 15, 2013, filing deadline, one of
plaintiffs’ lawyer’s assistants placed their 2009 claim in a mailbox. She did not obtain a stamped
certified mail receipt or a copy of the postmark. The IRS did not receive plaintiffs’ claim until
October 23, 2013, and denied it as untimely filed. The IRS also denied as untimely the estate’s
amended return for that year. Consequently, plaintiffs paid taxes on all of the LLC’s 2009
income, despite owning only a fifty percent share, while the estate paid none.
Plaintiffs filed a complaint shortly thereafter, contending they filed their claim in a timely
manner, and even if not, the tax code’s mitigation provisions provided relief. In lieu of an
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answer, the United States moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), or,
alternatively, 12(b)(6). The district court granted defendant’s motion, holding plaintiffs could
not show their claim was timely filed, nor state a claim for relief under the mitigation provisions
after abandoning their initial position that the IRS had unjustly collected taxes on one hundred
and fifty percent of the LLC’s 2009 income. Plaintiffs appeal.
II.
We review de novo the district court’s decision granting defendant’s motion to dismiss
under Rules 12(b)(1) and 12(b)(6). See, e.g., Stew Farm, Ltd. v. Natural Res. Conservation
Serv., 767 F.3d 554, 558 (6th Cir. 2014). “Aside from the resolution of jurisdictional
prerequisites, a district court must generally confine its Rule 12(b)(1) or 12(b)(6) ruling to
matters contained within the pleadings and accept all well-pleaded allegations as true.” Tackett
v. M & G Polymers, USA, LLC, 561 F.3d 478, 481 (6th Cir. 2009). “This court may affirm on
any grounds supported by the record, even those not relied on by the district court.” United
States ex rel. Harper v. Muskingum Watershed Conservancy Dist., 842 F.3d 430, 435 (6th Cir.
2016).
III.
A taxpayer must generally file a refund claim within three years from the time she filed
her original return. 26 U.S.C. § 6511(a). She bears the burden of establishing timely filing.
Miller v. United States, 784 F.2d 728, 729–30 (6th Cir. 1986) (per curiam). Statutes of
limitations “must be strictly adhered to by the judiciary,” Kavanagh v. Noble, 332 U.S. 535, 539
(1947), and the limitations period for filing tax refund claims established in § 6511 is not subject
to equitable tolling, United States v. Brockamp, 519 U.S. 347, 354 (1997). The Allreds must
therefore show they filed their claim by October 15, 2013. See 26 U.S.C. § 6511(a). They
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placed their claim in a mailbox on October 10, 2013. However, the IRS did not receive it until
October 23, 2013.
In Miller v. United States, this court established that the “physical delivery rule,” under
which filing is “not complete until the document is delivered and received,” governs tax claim
and return filing. 784 F.2d at 730 (citation and footnote omitted). There are two statutory
exceptions established in 26 U.S.C. § 7502 “to address cases in which a document reaches the
IRS after a filing deadline.” Stocker v. United States, 705 F.3d 225, 233 (6th Cir. 2013). First, a
claim or other document that is “delivered by United States mail” to the IRS is deemed to have
been delivered—and hence filed—on “the date of the United States postmark stamped on the
cover” of the mailing. § 7502(a)(1). Second, if a claim or other document “is sent by United
States registered mail,” this registration “shall be prima facie evidence that the . . . claim or other
document was delivered” to the IRS, and “the date of registration shall be deemed the postmark
date.” § 7502(c)(1). Our longstanding precedent rejects any reliance on extrinsic evidence to
prove timely filing other than a mail receipt or postmark. See, e.g., Stocker, 705 F.3d at 231–33
(collecting authorities).
Here, there is no postmark in the record, and plaintiffs admit they did not have a certified
mailing receipt stamped by the post office. Plaintiffs contend instead that the district court
should have refrained from ruling on defendant’s motion to dismiss before defendant produced a
copy of the envelope in which plaintiffs mailed their claim. However, plaintiffs never raised this
argument before the district court or requested any such discovery. Instead, plaintiffs conceded
they could not show their claim was timely filed, thus giving the district court no reason to
suspect limited discovery or a hearing would prove otherwise. In general, we review “the case
presented to the district court, instead of a better case fashioned after a district court’s
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unfavorable order.” Estate of Barney v. PNC Bank, Nat. Ass’n, 714 F.3d 920, 925 (6th Cir.
2013). Plaintiffs offer no persuasive reason to depart from this edict here.
Following oral arguments in this appeal, plaintiffs moved to supplement the record. In
response, the panel ordered the government to show cause why the matter should not be
remanded to the district court for further development of the record. The government’s response
has persuaded us that remand would be futile. We therefore deny the motion to supplement the
record.
In sum, there is no evidence of timely filing that we may consider. Plaintiffs produced no
such evidence in district court, and that circumstance has not changed on appeal.
IV.
Plaintiffs argue in the alternative that, even if they cannot show timely filing, they are
still entitled to relief because the mitigation provisions of 26 U.S.C. §§ 1311–14 apply. The
mitigation provisions, however, are not implicated in this case.
The rules associated with claiming tax refunds can lead to unfair results, even when a
taxpayer is entitled to a refund. The mitigation provisions are meant to allay these effects by
allowing for “the correction of an error made in a prior tax year even though the ordinary
limitations period has run.” Haas v. United States, 107 Fed. Cl. 1, 6 (2012). Although these
provisions serve an equitable purpose, “Congress did not intend by [the provisions] to provide
relief in all situations in which just claims are precluded by statutes of limitations.” Olin
Mathieson Chemical Corp. v. United States, 265 F.2d 293, 296 (7th Cir. 1959).
The current mitigation provisions allow plaintiffs to obtain a refund of 2009 income tax
that would otherwise be barred by § 6511(a) if: (1) there is “a determination” as defined by
§ 1313(a)(1)–(4); (2) that falls within one of the seven “circumstances of adjustment” described
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in § 1312(1)–(7); and (3) the party against whom the mitigation will operate has maintained an
inconsistent position per § 1311(b)(1). See 26 U.S.C. § 1311(a); see also Hass, 107 Fed. Cl. at 6.
Plaintiffs “assume the burden of proving the existence of the prerequisites to [the statute’s]
applicability.” Taxeraas v. United States, 269 F.2d 283, 289 (8th Cir. 1959). Even assuming
plaintiffs can satisfy the first requirement, they cannot, by their own admission, satisfy the
second—the denial of their refund claim does not fall within one of the seven specific
“circumstances of adjustment” listed in § 1312(1)–(7).
Plaintiffs effectively alleged in their complaint that a “double inclusion of an item of
gross income” under § 1312(1) had resulted, warranting adjustment. A double inclusion results
from “the inclusion in gross income of an item which was erroneously included in the gross
income . . . of a related taxpayer.” § 1312(1). In other words, a double inclusion occurs when
the IRS makes a decision that results in its collection of double taxes on the same item of gross
income. See Cocchiara v. United States, 779 F.2d 1108, 1113 (5th Cir. 1986.) Plaintiffs initially
believed that the IRS denied plaintiffs’ refund claim and accepted the estate’s amended return
and payment.1 If true, a double inclusion would have resulted because the IRS would have
collected taxes on one hundred and fifty percent of the LLC’s 2009 income. Plaintiffs soon
discovered and disclosed, however, that the IRS had in fact rejected the estate’s 2009 amended
return and payment. Thus, the IRS collected taxes on only one hundred percent of the LLC’s
2009 income, albeit all from plaintiffs.
Plaintiffs contend for the first time on appeal that the IRS improperly rejected the estate’s
2009 amended return, and instead should have accepted the estate’s amended return and tax
payment under the so-called six-year exception codified at § 6501(e)(1)(A)(i). Normally, the
1
The estate is a “related taxpayer” under § 1313(c)(6) because the estate “stood” with
plaintiffs as their partner in the LLC in 2009. See 26 U.S.C. § 1313(c)(6).
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IRS has three years to assess additional tax. § 6501(a). The six-year exception provides that if a
taxpayer omits an amount from gross income that is properly includable and that amount is more
than twenty-five percent of the amount of gross income stated in the return, “the tax may be
assessed, or a proceeding in court for the collection of such tax may be begun without
assessment, at any time within 6 years after the return was filed.” § 6501(e)(1)(A)(i). In short,
plaintiffs argue we should require the IRS to apply the six-year exception, and thus create the
double inclusion that would allow plaintiffs to fall within the mitigation provisions. But they cite
no authority that would allow this court to do what they request.
We decline to grant such relief. First, plaintiffs merely speculate that the estate’s 2009
amended return falls within the six-year exception, and that the IRS could and would reverse
course if made to apply it. Second, the plain language of the statute does not appear to obligate
the IRS to apply the exception and assess the tax; it provides that “the tax may be assessed[.]”
§ 6501(e)(1)(A)(i) (emphasis added). Plaintiffs cite no authority to the contrary. Finally,
plaintiffs do not allege that a failure to apply the six-year exception against a related taxpayer
falls within any of the “circumstances of adjustment” in § 1312(1)–(7).
The mitigation provisions do not constitute a general equitable exception to the statutory
limitations period. Longiotti v. United States, 819 F.2d 65, 68 (4th Cir. 1987); see also Haas,
107 Fed. Cl. at 6. To obtain relief, plaintiffs’ situation must fall within one of seven specified
“circumstances of adjustment.” See § 1312. Plaintiffs admit, however, that no double inclusion
occurred within the meaning of § 1312(1), and they do not allege that any other “circumstance of
adjustment” is applicable. Because plaintiffs cannot satisfy the second threshold requirement,
and thus cannot state a claim for relief under the mitigation provisions, we need not address the
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third requirement. Plaintiffs’ circumstance is unfortunate, but the mitigation provisions provide
no basis upon which to grant them relief.
V.
For these reasons, we affirm the judgment of the district court.
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