General Mills, Inc. v. United States ( 2020 )

Case: 19-1124 Document: 42 Page: 1 Filed: 04/23/2020
United States Court of Appeals
for the Federal Circuit
______________________
GENERAL MILLS, INC. AND SUBSIDIARIES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1124
______________________
Appeal from the United States Court of Federal Claims
in No. 1:14-cv-00089-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: April 23, 2020
______________________
SHERI DILLON, Morgan, Lewis & Bockius LLP, Wash-
ington, DC, argued for plaintiff-appellant. Also repre-
sented by JENNIFER BREEN, WILLIAM NELSON, JAMES
GASTON STEELE, III.
JULIE CIAMPORCERO AVETTA, Tax Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee. Also represented by ARTHUR THOMAS
CATTERALL, RICHARD E. ZUCKERMAN.
______________________
Case: 19-1124 Document: 42 Page: 2 Filed: 04/23/2020
2 GENERAL MILLS, INC. v. UNITED STATES
Before NEWMAN, MOORE, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge CHEN.
Dissenting opinion filed by Circuit Judge NEWMAN.
CHEN, Circuit Judge.
General Mills, Inc. & Subsidiaries (collectively, GMI)
sued the United States seeking refunds of interest it paid
on corporate income tax underpayments that the Internal
Revenue Service (IRS) assessed at the enhanced rate of in-
terest for “large corporate underpayments” (LCU) set forth
in Internal Revenue Code (I.R.C.) § 6621(c). GMI is the
parent corporation of a number of partners of General Mills
Cereals, LLC, a limited liability company that is treated as
a partnership for tax purposes (the Partnership). GMI al-
leges that after certain partnership-level audits of the
Partnership’s returns for the 2002–2006 tax years were
settled with the IRS, the IRS erroneously collected
$5,958,695 in LCU interest by selecting incorrect “applica-
ble dates” to start interest accrual. GMI paid the LCU in-
terest in April 2011, and, in March 2013, filed
administrative refund claims with the IRS. After the IRS
denied the claims, GMI initiated the underlying refund suit
in the United States Court of Federal Claims. The court
dismissed GMI’s suit for lack of subject matter jurisdiction,
concluding that GMI was required, but failed, to file its ad-
ministrative refund claims with the IRS within the six-
month limitations period set forth in I.R.C. § 6230(c). Gen-
eral Mills, Inc. v. United States, 123 Fed. Cl. 576 (2015).
GMI contends that the general two-year tax refund
claim limitations period under I.R.C. § 6511(a) should ap-
ply to its administrative refund claims, instead of the spe-
cial six-month limitations period described in § 6230(c).
Section 6230(c) provides that “[a] partner may file a claim
for refund on the grounds that . . . the [IRS] erroneously
computed any computational adjustment necessary . . . to
apply to the partner a settlement.” § 6230(c)(1)(A)(ii).
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GENERAL MILLS, INC. v. UNITED STATES 3
Section 6230(c) further provides that any such claim “shall
be filed within 6 months after the day on which the [IRS]
mails the notice of computational adjustment to the part-
ner.” § 6230(c)(2)(A). Because we agree with the Court of
Federal Claims that the basis of GMI’s refund claims is
that the IRS erroneously computed a computational adjust-
ment resulting from a settlement by allegedly miscalculat-
ing the amount of LCU interest due, GMI’s refund claims
are subject to the six-month limitations period. Since GMI
received adequate notice of the computational adjustment,
and yet, filed its refund claims well outside the six-month
period, we affirm the dismissal.
BACKGROUND
A. TEFRA’S STATUTORY FRAMEWORK
This appeal concerns determining the applicable stat-
ute of limitations for GMI’s administrative refund claims—
the six-month limitations period under § 6230(c) or the
general two-year limitations period under § 6511(a)—and
then determining whether that limitations period began to
run when the IRS provided GMI with certain notices of the
amounts of LCU interest it owed. Before turning to the
facts, we undertake a brief review of the Tax Equity and
Fiscal Responsibility Act of 1982 (TEFRA), generally codi-
fied at I.R.C. §§ 6221–34, and its effect on the IRS’s audit-
ing of partnerships.
A partnership does not pay federal income taxes; in-
stead, its taxable income and losses pass through to its
partners. I.R.C. § 701. A partnership must report its tax
items on an information return, I.R.C. § 6031(a), and the
partners must report their distributive shares of the part-
nership’s tax items on their own individual returns, I.R.C.
§§ 702, 704. TEFRA comes into play when the IRS reviews
a partnership’s information return and disputes some as-
pect of it. Bush v. United States, 655 F.3d 1323, 1324–25
(Fed. Cir. 2011).
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4 GENERAL MILLS, INC. v. UNITED STATES
“Partnership items” are items whose treatment affects
the entire partnership such as the partnership’s income,
gain, loss, or credit, and so analyzing them at the partner-
ship level makes more sense than doing so partner-by-part-
ner. See § 6231(a)(3) (defining “partnership item”); Treas.
Reg. §§ 301.6231(a)(3)–1(a), 1(b). Prior to the 1982 enact-
ment of TEFRA, the Internal Revenue Code treated part-
nership items at the individual partner level. Adjustments
to the tax treatment of partnership items had to be deter-
mined in separate proceedings involving each individual
partner. Olson v. United States, 172 F.3d 1311, 1316 (Fed.
Cir. 1999). If a partnership had numerous partners located
throughout the country, the piecemeal nature of the indi-
vidual partner-level determinations sometimes resulted in
inconsistent treatment of the same items between different
partners and in duplication of administrative and judicial
resources. Id.; Bassing v. United States, 563 F.3d 1280,
1282 (Fed. Cir. 2009); see also RJT Investments X v.
Comm’r, 491 F.3d 732, 737 (8th Cir. 2007) (“TEFRA was
intended . . . to prevent inconsistent and inequitable in-
come tax treatment between various partners of the same
partnership resulting from conflicting determinations of
partnership level items in individual partner proceed-
ings.”).
Consequently, TEFRA was enacted in order to stream-
line the tax audit, assessment, and litigation procedures
for partnerships. Bush, 655 F.3d at 1325. Rather than un-
dertake an arduous series of partner-by-partner audits, as
had previously been required, TEFRA allows for a single,
unified partnership-level procedure for auditing and liti-
gating partnership items, thus addressing concerns about
inconsistent treatment of the same partnership items
across partners. Id.; Stobie Creek Investments LLC v.
United States, 608 F.3d 1366, 1374 (Fed. Cir. 2010).
Partnership-related matters are addressed in two
stages under TEFRA: partnership level and then individ-
ual partner level. United States v. Woods, 571 U.S. 31, 39
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GENERAL MILLS, INC. v. UNITED STATES 5
(2013). During the first stage, the IRS initiates a partner-
ship-level proceeding to adjust partnership items reported
on the partnership’s information return. Id.; § 6221. Each
partner has the right to participate in the IRS’s audit of the
partnership’s information return. Olson, 172 F.3d at 1317;
see § 6224(a). A partner may waive this right and opt out
of the partnership-level proceeding by entering into a bind-
ing settlement agreement with the IRS. Olson, 172 F.3d at
1317; see §§ 6224(b), (c). Upon completion of the partner-
ship-level proceeding, the IRS is required to mail to certain
partners a copy of the resulting final partnership adminis-
trative adjustment, which notifies the partners of any ad-
justments to partnership items. Olson, 172 F.3d at 1317;
see § 6223.
During the second stage, the results of the partnership-
level proceeding are applied to the individual partners. In
the partner-level proceeding, the IRS makes “computa-
tional adjustments” to each partner’s return to reflect the
adjustments to partnership items. See § 6231(a)(6) (defin-
ing “computational adjustment” as “the change in the tax
liability of a partner which properly reflects the treatment
under this subchapter of a partnership item”).
The partner-level proceedings subsequently follow one
of two procedures: direct assessment or deficiency proce-
dure. Thompson v. Comm’r, 729 F.3d 869, 871 (8th Cir.
2013). Most computational adjustments are directly as-
sessed against the partners. Woods, 571 U.S. at 39. If the
IRS’s calculation is purely computational, the IRS directly
assesses the computational adjustment and issues to the
partner a notice of computational adjustment. Chai v.
Comm’r, 851 F.3d 190, 196 (2d Cir. 2017). For direct as-
sessments, the partners are permitted to challenge any er-
ror in the computational adjustments only in post-payment
refund actions. Woods, 571 U.S. at 39; see §§ 6230(a)(1), (c).
TEFRA added the provisions providing for direct assess-
ment in order “to increase efficiency when the IRS audits
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6 GENERAL MILLS, INC. v. UNITED STATES
partnership returns that may affect a large number of in-
dividual taxpayers.” Bush, 655 F.3d at 1328; see § 6230(a).
The “standard” deficiency procedures are still required
for certain computational adjustments that require a fac-
tual determination at the partner level, such as, for exam-
ple, a determination of negligence by the partner. Olson,
172 F.3d at 1317; see § 6230(a)(2)(A)(i). The deficiency pro-
cedures, set forth in I.R.C. §§ 6211–16, require the IRS to
issue a pre-assessment notice of deficiency to each tax-
payer, § 6212(a), who can file a petition in the Tax Court
disputing the alleged deficiency before paying it, § 6213(a).
Woods, 571 U.S. at 38.
For those computational adjustments that are directly
assessed against them, the partners may challenge any er-
ror in the computational adjustments by filing administra-
tive refund claims with the IRS. See §§ 6230(a)(1), (c). For
certain types of these administrative refund claims,
§ 6230(c) requires the taxpayer to “file[] within 6 months
after the day on which the Secretary mails notice of com-
putational adjustment to the partner.” § 6230(c)(2)(A). 1
With this legal framework in mind, we turn to the facts.
1 In the Bipartisan Budget Act of 2015, Congress
amended the TEFRA procedures and struck
§ 6230(c)(2)(A), the provision that set forth the six-month
limitations period. Pub. L. No. 114–74, § 1101, 129 Stat.
584, 625. The Bipartisan Budget Act reformed the part-
nership auditing procedures such that, in addition to mak-
ing adjustments to partnership items at the partnership
level, any additional tax liability resulting from those ad-
justments are assessed and collected from the partnership
at the partnership level, rather than from the individual
partners in the partner-level proceedings. BASR P’ship v.
United States, 915 F.3d 771, 775 n.6 (Fed. Cir. 2019). The
Bipartisan Budget Act is effective only for partnership tax
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GENERAL MILLS, INC. v. UNITED STATES 7
B. FACTS
GMI seeks a refund of interest the IRS assessed on
large corporate underpayments 2 of corporate income tax
for the 2002–2006 tax years. The interest rate applied to
large corporate underpayments is not the interest rate typ-
ically applied to an underpayment of tax, 3 but instead is
two percent higher than the default underpayment rate.
See § 6621(c). The enhanced interest rate on large corpo-
rate underpayments applies, however, only to periods after
the “applicable date” and only after the IRS satisfies cer-
tain notice requirements as specified in § 6621(c). Treas.
Reg. § 301.6621–3(c)(1). At the Court of Federal Claims,
GMI alleged that the IRS miscalculated the amount of LCU
interest owed by using incorrect applicable dates to start
the accrual of LCU interest for the relevant tax years. The
court never reached that merits question because it agreed
with the Government that GMI failed to file its adminis-
trative refund claims with the IRS within the six-month
limitations period established by § 6230(c).
1. THE 2002 AND 2003 TAX YEARS
years beginning after December 31, 2017. See Bipartisan
Budget Act of 2015 § 1101, 129 Stat. at 638. Because this
case concerns the 2002–2006 tax years, the previous
TEFRA provisions apply, including § 6230(c)(2)(A). Our
holding today is limited to interpreting the TEFRA provi-
sions as they existed before the amendment.
2 The term “large corporate underpayment” means
“any underpayment of a tax by a C corporation for any tax-
able period if the amount of such underpayment for such
period exceeds $100,000.” § 6621(c)(3)(A).
3 Interest on underpayments of tax is generally im-
posed at the default underpayment rate of the federal
short-term rate plus three percentage points. I.R.C.
§§ 6601(a), 6621(a)(2).
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8 GENERAL MILLS, INC. v. UNITED STATES
GMI timely filed its corporate income tax returns for
the 2002 and 2003 tax years, and the Partnership timely
filed partnership income tax returns for those years as
well. The partners of the Partnership are subsidiaries of
the GMI corporate entity. 4 In January 2005, the IRS com-
menced a TEFRA audit of the Partnership’s 2002 and 2003
tax returns, and in April 2005, the IRS commenced an au-
dit of GMI’s 2002 and 2003 corporate tax returns using de-
ficiency procedures.
On June 15, 2007, after completing the audit of GMI’s
2002 and 2003 corporate tax returns, the IRS mailed a 30-
day letter to GMI with an enclosed “examination report”
showing the results of the corporate tax audit and “pro-
posed changes to [GMI’s] tax[es].” J.A. 178. The 30-day
letter identified tax deficiencies of more than $143 million
for 2002 and of nearly $93 million for 2003. The letter ex-
plained the conditions under which LCU interest would be
imposed: “If you are a ‘C’ Corporation, Section 6621(c) of
the Internal Revenue Code provides that an interest rate
2% higher than the standard rate of interest will be
charged on deficiencies of $100,000 or more.” It also stated:
“If you pay the full amount due now, you will limit the
amount of interest and penalties charged to your account.”
As for the related TEFRA partnership proceeding for
the 2002 and 2003 tax years, the partners entered into set-
tlement agreements with the IRS in July 2010. The Part-
nership settlement agreements resulted in adjustments to
partnership items reported on the Partnership’s 2002 and
2003 tax returns. The partners and the IRS executed a
Form 870-LT(AD), “Settlement Agreement for Partnership
Items and Partnership Level Determinations as to
4 The partners include, inter alia, General Mills Op-
erations, Inc., GM Cereals Holdings, Inc., GM Cereals Op-
erations, Inc., and the Pillsbury Company. J.A. 257, 262,
272, 287.
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GENERAL MILLS, INC. v. UNITED STATES 9
Penalties, Additions to Tax and Additional Amounts and
Agreement for Affected Items.” The Form 870-LT(AD)
shows that the Partnership settlement agreements con-
templated an assessment of “any interest provided by law.”
J.A. 257–58, 262–63, 267–68, 272–73, 278–79, 287–88,
296–97, 305–06, 314–15, 323–24.
On August 27, 2010, the IRS mailed a Form 5278
(“Statement – Income Tax Changes”), informing GMI of
how the adjustments to partnership items resulting from
the Partnership settlement agreements had increased
GMI’s 2002–2003 corporate income tax liabilities beyond
the deficiencies the IRS identified in the above-described
30-day letter from June 15, 2007. The accompanying cover
letter stated, “[t]he enclosed audit statement explains how
the adjustments made during our examination of General
Mills Cereal, LLC affect your income tax return.” J.A. 332.
The Form 5278 reflected additional underpayments by
GMI of about $16 million for 2002 and more than $33 mil-
lion for 2003. J.A. 333. The cover letter advised GMI that
the IRS “will adjust your account and figure the interest
. . . [and] will send a bill for any additional amount you
owe.” J.A. 332. One week later, the IRS assessed against
GMI the identified tax deficiencies plus interest, which in-
cluded LCU interest. J.A. 186, 197.
On April 11, 2011, GMI made payments of tax and in-
terest to the IRS sufficient to eliminate its account bal-
ances with respect to the 2002 and 2003 tax years.
J.A. 187, 344, 199, 338. On April 18, 2011 and April 20,
2011, the IRS mailed detailed interest computation sched-
ules to GMI for the 2002 and 2003 tax years. J.A. 334–38,
342–44. The accompanying cover letters stated the inter-
est computation schedules were used by the IRS to “calcu-
late interest on the tax adjustment for the [2002 and 2003]
return[s].” J.A. 334, 342.
The interest computation schedules informed GMI that
for the 2002–2003 tax years, the IRS treated July 15, 2007
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10 GENERAL MILLS, INC. v. UNITED STATES
as the “applicable date” for imposing LCU interest.
J.A. 335, 337. July 15, 2007 was the thirtieth day after the
30-day letter was issued on June 15, 2007. As required by
statute, the “applicable date” for LCU interest to begin ac-
cruing is determined “by taking into account any letter or
notice provided by the [IRS] which notifies the taxpayer” of
the assessment (or the proposed assessment) of the tax or
of the deficiency (or the proposed deficiency). See
§§ 6621(c)(2)(A), (c)(2)(B)(i). The taxpayer has thirty days
after notice to pay the large corporate underpayment be-
fore the enhanced interest rate will apply. Id.
GMI acknowledges that it owed some amount of LCU
interest, but disputes when the LCU interest should have
begun to accrue. GMI claims that September 26, 2010—
and not July 15, 2007—was the correct applicable date, be-
cause, in its view, it did not receive proper notice from the
IRS before then. See Treas. Reg. § 301.6621–3(c)(1). Sep-
tember 26, 2010 was the thirtieth day after the IRS issued
the Form 5278 on August 27, 2010 which, according to
GMI, represented “the first notice it received upon the con-
clusion of the partnership proceedings that notified GMI of
an assessment of tax attributable to partnership items.”
General Mills, 123 Fed. Cl. at 581. In GMI’s view, the IRS
incorrectly applied § 6621(c)(2)(A) for determining the ap-
plicable date, when it should have instead applied
§ 6621(c)(2)(B)(i). 5 Appellant’s Br. at 4–5.
5 Section 6621(c)(2)(A) provides for the applicable
date for any underpayment of a tax to which the deficiency
procedures apply. In such circumstances, the applicable
date is the thirtieth day after the earlier of the date on
which the IRS sends a “letter of proposed deficiency” (30-
day letter) or a “deficiency notice.” § 6621(c)(2)(A); Treas.
Reg. § 301.6621–3(c)(2). On the other hand,
§ 6621(c)(2)(B)(i) supplies the applicable date for any un-
derpayment of a tax to which nondeficiency procedures
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GENERAL MILLS, INC. v. UNITED STATES 11
2. THE 2004, 2005, AND 2006 TAX YEARS
GMI timely filed its corporate income tax returns for
the 2004, 2005, and 2006 tax years. The Partnership
timely filed its partnership income tax returns for those
years as well. In September 2007, the IRS began auditing
GMI’s 2004–2006 corporate tax returns. In November
2007, the IRS notified the Partnership that it would initi-
ate a TEFRA proceeding with respect to the Partnership’s
2004–2006 tax returns.
On April 29, 2009, the IRS sent a 30-day letter to GMI
showing the results of the corporate tax audit for 2004–
2006 and enclosing an “examination report showing pro-
posed changes to [GMI’s] tax[es].” J.A. 345. The 30-day
letter identified tax deficiencies of more than $30 million
for 2004, $347 million for 2005, and $58 million for 2006.
J.A. 347. As was the case with the 30-day letter relating to
2002–2003, the letter for 2004–2006 informed GMI of the
enhanced interest rate imposed on large corporate under-
payments and advised GMI that “pay[ing] the full amount
due now . . . will limit the amount of interest and penalties.”
J.A. 347.
As for the TEFRA partnership proceeding, in Novem-
ber 2010, the partners entered into settlement agreements
with the IRS, as reflected in executed Form 870-LT(AD).
The settlement agreement Form 870-LT(AD) contemplated
an assessment of “any interest provided by law.” J.A. 380–
81, 388–89, 398–99, 408–09, 418–19, 428–29, 438–39, 448–
49, 458–59, 468–69. The Partnership settlement agree-
ments resulted in TEFRA adjustments to certain partner-
ship items that increased GMI’s corporate tax liabilities for
the 2004–2006 tax years.
apply. There, the applicable date is thirty days after the
IRS “notifies the taxpayer of the assessment or proposed
assessment of the tax.” § 6621(c)(2)(B)(i).
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12 GENERAL MILLS, INC. v. UNITED STATES
On March 4, 2011, the IRS sent GMI a second 30-day
letter along with multiple computational documents show-
ing the impact of the TEFRA adjustments on GMI’s corpo-
rate tax liabilities for 2004–2006. J.A. 478–558. The
second 30-day letter also enclosed a Form 870, “Waiver of
Restrictions on Assessment and Collection of Deficiency in
Tax and Acceptance of Overassessment,” which GMI’s rep-
resentative later signed. The executed Form 870 stated
that GMI “consent[s] to the immediate assessment and col-
lection of any deficiencies (increase in tax and penalties)
. . . shown [herein], plus any interest provided by law.”
J.A. 480. The computational documents showed that the
IRS computed underpayments in tax for GMI’s 2004, 2005,
and 2006 tax years of, respectively, more than $19 million,
more than $9 million, and about $52 million. J.A. 480, 483.
As with the earlier 30-day letters, the letter informed GMI
that the IRS would impose an enhanced interest rate on
large corporate underpayments. J.A. 478. On April 11,
2011, GMI paid these amounts together with designated
interest, including LCU interest. J.A. 207, 217, 226.
Thereafter, on June 14, 2011, the IRS provided GMI
with the interest computation schedules that it had used to
compute the amount of interest due, including the amount
of LCU interest due, on GMI’s tax underpayments for
2004–2006. J.A. 559–63. The interest computation sched-
ules informed GMI that the IRS had applied an applicable
date of May 29, 2009 for beginning the accrual of LCU in-
terest. May 29, 2009 was the thirtieth day after the IRS
issued the first 30-day letter on April 29, 2009. See
§ 6621(c)(2).
As with the 2002–2003 tax years, GMI claims the IRS
used the incorrect applicable date to compute the amount
of LCU interest due for the 2004–2006 tax years. GMI ar-
gues that the correct applicable date should have been
April 3, 2011, i.e., the thirtieth day after the second 30-day
letter dated March 4, 2011 and additional computational
documents showing the impact of the Partnership
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GENERAL MILLS, INC. v. UNITED STATES 13
settlement agreements. As with GMI’s claims relating to
the 2002–2003 tax years, GMI believes the IRS erroneously
applied § 6621(c)(2)(A), when it should have applied
§ 6621(c)(2)(B)(i), to determine the applicable date.
C. PROCEEDINGS BELOW
GMI did not file administrative claims with the IRS for
refund of the paid LCU interest until March 28, 2013,
which was more than six months after the IRS notified
GMI of its obligations respecting LCU interest. After the
IRS denied GMI’s administrative refund claims, GMI
brought this refund suit in the Court of Federal Claims.
The Government moved to dismiss GMI’s complaint for
lack of subject matter jurisdiction, arguing that GMI failed
to file its administrative refund claims within the six-
month limitations period under § 6230(c). GMI responded
that its request for refund was timely because, in its view,
the tax code’s general two-year statute of limitations ap-
plied to its administrative refund claims. See § 6511(a).
Before a tax refund claim can be considered by a court,
it must be filed with the IRS within applicable statutory
time limitations. See I.R.C. § 7422(a) (barring suit for the
refund of taxes unless and until an administrative refund
claim that complies with statutory and regulatory require-
ments “has been duly filed with the [IRS]”); see also United
States v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 5 (2008)
(“Read together, the import of [I.R.C. § 7422(a) and
§ 6511(a)] is clear: unless a claim for refund of a tax has
been filed within the time limits imposed by § 6511(a), a
suit for refund . . . may not be maintained in any court.”)
(quoting United States v. Dalm, 494 U.S. 596, 602 (1990)).
We have held that a taxpayer’s failure to file a timely re-
fund claim with the IRS deprives the trial court of subject
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14 GENERAL MILLS, INC. v. UNITED STATES
matter jurisdiction. 6 Sun Chem. Corp. v. United States,
698 F.2d 1203, 1206 (Fed. Cir. 1983) (“[A] timely, sufficient
claim for refund is a jurisdictional prerequisite to a refund
suit . . . .”) (citations omitted).
The general statute of limitations for filing a refund
claim is two years from the date of payment or three years
from the date of filing a tax return, whichever is later.
§ 6511(a). 7 The parties agree that, if we were to find that
§ 6511(a) supplies the relevant statute of limitations, then
two years would be the applicable length. Appellant’s Br.
at 30; Appellee’s Br. at 37. GMI filed administrative refund
claims with the IRS on March 28, 2013, which is within two
years of having paid the contested LCU interest on
April 11, 2011.
Section 6511(a) establishes the limitations period for
most claims for refund of overpayment, unless an exception
applies. One exception to § 6511(a) is the six-month limi-
tations period that applies to certain claims arising out of
alleged IRS “erroneous[] comput[ations] [of] any computa-
tional adjustment.” See § 6230(c)(1)(A) (stating that “[a]
6 No party challenges whether the requirements of
§ 7422(a) and relevant statutes of limitations in the tax
code implicate a court’s subject matter jurisdiction. Ac-
cordingly, that question is not at issue in this case.
7 Section 6511(a) states:
Claim for credit or refund of an overpayment of any
tax imposed by this title in respect of which tax the
taxpayer is required to file a return shall be filed
by the taxpayer within 3 years from the time the
return was filed or 2 years from the time the tax
was paid, whichever of such periods expires the
later, or if no return was filed by the taxpayer,
within 2 years from the time the tax was paid.
§ 6511(a).
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GENERAL MILLS, INC. v. UNITED STATES 15
partner may file a claim for refund on the grounds that the
Secretary erroneously computed any computational adjust-
ment necessary” for certain actions); § 6230(c)(2)(A). Ac-
cordingly, under TEFRA, if the IRS erroneously computes
a computational adjustment under certain circumstances,
the taxpayer must file an administrative refund claim
within six months after the IRS mails a notice of computa-
tional adjustment to the partner. Id.
The Court of Federal Claims agreed with the Govern-
ment that the six-month limitations period applied because
GMI made “a claim for refund on the grounds that . . . the
[IRS] erroneously computed a[] computational adjustment
necessary . . . to apply to the partner a settlement” under
§ 6230(c)(1)(A)(ii). General Mills, 123 Fed. Cl. at 586–87.
The court held that the general two-year limitations period
of § 6511(a) had been preempted by the more specific pro-
vision of § 6230(c). General Mills, 123 Fed. Cl. at 594. The
court also found that the IRS had provided GMI with ade-
quate notices of the computational adjustments to trigger
the running of the limitations period. Id. at 590. With this
six-month period having expired, the court held that it
lacked jurisdiction to entertain GMI’s refund suit. Id. at
594.
GMI timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
DISCUSSION
This court reviews de novo the determination by the
Court of Federal Claims that it lacked subject matter juris-
diction. Wilson v. United States, 405 F.3d 1002, 1008 (Fed.
Cir. 2005). “In determining whether a motion to dismiss
should be granted, the Claims Court may find it necessary
to inquire into jurisdictional facts that are disputed.” Roco-
vich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991).
The court’s findings of fact are reviewed for clear error. Id.
As the plaintiff, GMI bears the burden of establishing that
the court has subject matter jurisdiction over its claims.
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16 GENERAL MILLS, INC. v. UNITED STATES
McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S.
178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988).
A. WHETHER GMI’S REFUND CLAIMS ARE SUBJECT TO THE
SPECIAL SIX-MONTH LIMITATIONS PERIOD OR THE GENERAL
TWO-YEAR LIMITATIONS PERIOD
1. GMI’S REFUND CLAIMS FALL WITHIN SECTION 6230(c)
Section 6230(c)’s six-month limitations period, in rele-
vant part, applies to particular claims for refund, including
to claims under § 6230(c)(1)(A)(ii) that the IRS “errone-
ously computed a[] computational adjustment neces-
sary . . . to apply to the partner a settlement.”
§§ 6230(c)(1)(A)(ii), (c)(2)(A). GMI argues that its refund
claims do not fall under this provision because its dispute
over LCU interest allegedly does not involve [1] a “compu-
tational adjustment” that was [2] “erroneously computed”
and [3] “necessary . . . to apply to the partner a settlement.”
We agree with the Court of Federal Claims that GMI’s
claim that the IRS used the incorrect “applicable dates” to
calculate the amount of LCU interest owed falls within the
statutory language of § 6230(c)(1)(A)(ii). By its terms,
§ 6230(c)(1)(A)(ii) covers circumstances when the IRS
makes a computational error when changing a taxpayer’s
tax liability to properly reflect the treatment of a partner-
ship item based on the settlement of a TEFRA proceeding. 8
8 The dissent relies on United States v. Merriam for
the premise that, “If the words are doubtful, the doubt
must be resolved against the Government in favor of the
taxpayer.” 263 U.S. 179, 188 (1923). But in White v. United
States, 305 U.S. 281 (1938), after noting that it was not
“impressed” by this very argument, the Court said:
It is the function and duty of courts to resolve
doubts. We know of no reason why that function
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GENERAL MILLS, INC. v. UNITED STATES 17
That is what GMI alleges the IRS did in this case. As ex-
plained below, the essence of GMI’s challenge is to the
IRS’s computation of the change in its tax liability result-
ing from the Partnership’s settlement of partnership items.
First, we agree with the Court of Federal Claims’ anal-
ysis that the assessment of LCU interest in this case was
the result of a “computational adjustment” as the term is
defined by statute and regulation. General Mills, 123 Fed.
Cl. at 586. The Internal Revenue Code defines “computa-
tional adjustment” as “the change in the tax liability of a
partner which properly reflects the treatment . . . of a part-
nership item.” I.R.C. § 6231(a)(6). Moreover, “[a] compu-
tational adjustment includes any interest due with respect
to any underpayment . . . of tax attributable to adjustments
to reflect properly the treatment of partnership items.”
Treas. Reg. § 301.6231(a)(6)–1(b) (emphases added); see
also Olson, 172 F.3d at 1318 (stating that “the [Treasury]
regulations set forth that interest is to be included as a
computational adjustment”). GMI does not challenge the
validity of this Treasury regulation. The court correctly
noted “[t]hat ‘any’ is the modifier for both ‘interest’ and ‘un-
derpayment’ in” § 301.6231(a)(6)–1(b), and thus, “this reg-
ulatory provision makes clear that no interest attributable
to an underpayment is to be excluded from its reach.” Gen-
eral Mills, 123 Fed. Cl. at 584.
Second, GMI argues the ground for its refund claims—
that the IRS used the incorrect applicable dates to compute
the amount of LCU interest—alleges a legal error and not
a “computational” error. According to GMI, “[t]he
should be abdicated in a tax case more than in any
other where the rights of suitors turn on the con-
struction of a statute and it is our duty to decide
what that construction fairly should be.
305 U.S. at 292.
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18 GENERAL MILLS, INC. v. UNITED STATES
underlying dispute . . . turns on a legal disagreement about
which statutory provision prescribes the applicable date.”
Appellant’s Reply Br. at 11–12. The Court of Federal
Claims found, and we agree, that GMI’s claim that the IRS
used the incorrect applicable dates is a complaint that the
IRS “erroneously computed” the amount of LCU interest.
General Mills, 123 Fed. Cl. at 586; see § 6230(c)(1)(A)(ii).
The Internal Revenue Code does not provide a precise
definition of what constitutes an “erroneous[] com-
put[ation]” under § 6230(c). However, the fact that this
provision immediately follows § 6230(b), titled “Mathemat-
ical and clerical errors appearing on partnership returns,”
indicates that the statutory phrase “erroneously computed”
refers to a class of errors that is distinct from mere “[m]ath-
ematical and clerical errors,” as the Court of Federal
Claims observed. General Mills, 123 Fed. Cl. at 586 (citing
Acute Care Specialists II v. United States, 727 F.3d 802,
813 (7th Cir. 2013)).
In Acute Care Specialists II, the Court of Appeals for
the Seventh Circuit rejected the taxpayers’ argument that
the statutory phrase “erroneously computed any computa-
tional adjustment” refers exclusively to mathematical mis-
takes to the exclusion of substantive issues. 727 F.3d at
812–13. The court in Acute Care Specialists II relied on the
fact that the Internal Revenue Code provides separately for
“[m]athematical and clerical errors” under § 6230(b) and
“erroneous[] comput[ations]” under § 6230(c). Id. at 813.
There, the taxpayers claimed that the IRS erroneously in-
cluded in its tax computation an adjustment for a deduc-
tion that the taxpayers did not actually claim, and the
court held that the taxpayers’ claim alleged an “erroneous
computat[ion]” of a “computational adjustment,” thus re-
quiring application of § 6230(c)’s six-month limitations pe-
riod. Id. at 812.
Acute Care Specialists II is analogous to the present
case. GMI has effectively claimed that the IRS used an
Case: 19-1124 Document: 42 Page: 19 Filed: 04/23/2020
GENERAL MILLS, INC. v. UNITED STATES 19
incorrect variable in the formula for computing LCU inter-
est, as the Court of Federal Claims observed. General
Mills, 123 Fed. Cl. at 586. As with Acute Care Specialists
II, GMI’s complaint is based on a substantive issue with
computing a computational adjustment, rather than a
mere mathematical or clerical error. Further, while GMI
attempts to differentiate between “legal” errors and “com-
putational” errors, we see no basis for making that distinc-
tion. GMI cites no authority in support of its argument
that the statutory phrase “erroneously computed any com-
putational adjustment” excludes a challenge such as GMI’s
to the IRS’s determination of the applicable date for com-
puting the amount of LCU interest owed.
Third, the six-month limitations period covers circum-
stances, inter alia, where the “computational adjustment”
was “necessary . . . to apply to the partner a settlement.”
§ 6230(c)(1)(A)(ii). GMI argues that circumstance does not
apply to its case because choosing an applicable date and
imposing LCU interest were not “necessary . . . to apply . . .
a settlement” to GMI. GMI points to the fact that the Part-
nership settlement agreements executed by Form 870-
LT(AD) did not expressly cover any aspect of how LCU in-
terest would be imposed. Appellant’s Br. at 46–47. In-
stead, GMI argues, a global settlement agreement executed
in November 2011 by GMI and its subsidiaries with the
IRS carved out “the right [for GMI] to challenge interest
calculations made by the Service with respect to” particu-
lar tax years that included 2002–2006. J.A. 604.
We agree with the Court of Federal Claims that the
IRS’s assessment of LCU interest was “necessary . . . to ap-
ply” the Partnership settlement agreements to GMI. Gen-
eral Mills, 123 Fed. Cl. at 586–87. The Court of Federal
Claims noted that the executed Form 870-LT(AD) provided
that the IRS could assess “any interest provided by law”
against GMI with respect to the settled amounts of tax un-
derpayments for the 2002–2006 tax years. E.g., J.A. 257–
58, 262–63, 267–68, 272–73, 379–477. By executing Forms
Case: 19-1124 Document: 42 Page: 20 Filed: 04/23/2020
20 GENERAL MILLS, INC. v. UNITED STATES
870-LT(AD), GMI agreed that it “consent[ed] to the assess-
ment and collection of . . . any . . . additions to tax[] and ad-
ditional amounts that relate to adjustments to partnership
items . . . (plus any interest provided by law).” E.g.,
J.A. 257, 262 (emphasis added). Although the Partnership
settlement agreements did not explicitly explain how LCU
interest would be determined, as the Court of Federal
Claims noted, “the tax code prescribes the amount of inter-
est that applies for a large corporate underpayment and
the applicable date for determining interest accrual.” Gen-
eral Mills, 123 Fed. Cl. at 587. We agree with the Court of
Federal Claims that because interest was “clearly contem-
plated” as part of the Partnership settlement agreements,
the particular aspects of how LCU interest would be im-
posed need not have been set forth in the executed
Form 870-LT(AD). See id.
2. SECTION 6511(A) DOES NOT APPLY TO GMI’S REFUND
CLAIMS
Unlike the general two-year limitations provision of
§ 6511(a), the specifically drawn six-month limitations pro-
vision of § 6230(c) is particularly tailored to specific types
of claims, including, inter alia, claims that the IRS “erro-
neously computed a[] computational adjustment.”
§§ 6230(c)(1)(A), (c)(1)(C). The statutory language of
§ 6511(a), which broadly covers “claim[s] for . . . refund of
an overpayment of any tax imposed by [the Internal Reve-
nue Code],” could reasonably be read to account for GMI’s
refund claims. Nonetheless, because GMI’s refund claims
fall within the narrower, specifically drawn statute, that is
the provision that controls. Hinck v. United States, 550
U.S. 501, 506 (2007) (“[I]n most contexts, a precisely
drawn, detailed statute pre-empts more general reme-
dies.”) (quoting EC Term of Years Trust v. United States,
550 U.S. 429, 434 (2007)) (internal quotations omitted).
GMI next asserts that the policy goal of the shortened
six-month limitations period is to allow any errors affecting
Case: 19-1124 Document: 42 Page: 21 Filed: 04/23/2020
GENERAL MILLS, INC. v. UNITED STATES 21
the tax liability of multiple partners to flow through the
IRS promptly. Oral Arg. at 6:45–8:15, General Mills, Inc.
v. United States, No. 2019-1124 (Fed. Cir. Nov. 8, 2019),
http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2019-1124.mp3. Based on that policy goal,
GMI argues that any claims that are entirely dependent on
one partner’s unique factual circumstances should not be
governed by the shortened limitations period. Id. Further,
GMI argues that its challenge to the IRS’s assessment of
LCU interest depends on the unique factual circumstances
of the individual partners. Appellant’s Br. at 40–42. GMI
fails to point to any authority to support this position. Sec-
tion 6230(c)’s six-month limitations provision is not so par-
ticularly drafted as GMI wishes.
Finally, GMI argues that various other provisions in
the Internal Revenue Code, §§ 6511(g), 7422(h), and
6230(d)(6), suggest that the six-month limitations period
applies only to refund claims that are “attributable to part-
nership items” and that the general two-year limitations
period applies to claims for refund of tax that are “not at-
tributable to partnership items.” 9 Appellant’s Br. at 31–
34. GMI argues that its claim that the IRS applied the in-
correct applicable dates is not attributable to a partnership
item. Id. at 39.
The plain language of § 6230(c), however, gives no hint
that the only refund claims governed by the six-month
9 When interpreting § 7422(h), we explained that a
tax item is “attributable to a partnership item” if it is “due
to, caused by, or generated by a partnership item.” Bush v.
United States, 717 F.3d 920, 925 (Fed. Cir. 2013) (quoting
Keener v. United States, 551 F.3d 1358, 1365 (Fed. Cir.
2009)); see also Russian Recovery Fund Ltd. v. United
States, 851 F.3d 1253, 1261 (Fed. Cir. 2017) (defining “at-
tributable to” in I.R.C. § 6229(a) to mean “due to, caused
by, or generated by”).
Case: 19-1124 Document: 42 Page: 22 Filed: 04/23/2020
22 GENERAL MILLS, INC. v. UNITED STATES
limitations period are those for tax “attributable to part-
nership items.” See § 6230(c)(2)(A). By its terms, § 6230(c)
provides that the six-month limitations period applies to
“claims for refund on the grounds that the Secretary erro-
neously computed any computational adjustment neces-
sary” for certain actions including, among others, “to apply
to the partner a settlement.” §§ 6230(c)(1), 6230(c)(2)(A).
We decline GMI’s invitation to read into the six-month lim-
itations provision a new requirement that the refund
claims be “attributable to partnership items.”
As the Court of Federal Claims noted, none of the pro-
visions cited by GMI, § 6511(g) or § 7422(h), “indicate that
refund[] [claims] attributable to partnership items are the
only instances in which § 6230(c) applies.” General Mills,
123 Fed. Cl. at 592. We agree with the Court of Federal
Claims that §§ 6511(g) and 7422(h) “do not expressly ex-
clude” claims that are not attributable to partnership items
“from the reach of section 6230(c).” Id. at 594. The same
is true for § 6230(d)(6). Instead, those provisions make
clear that refund claims “attributable to partnership items”
are governed by § 6230(c). Id. at 594; see §§ 6511(g),
7422(h), 6230(d)(6). Accordingly, §§ 6511(g), 7422(h), and
6230(d)(6) do not confine the universe of refund claims to
which the six-month limitations period applies to those
that are “attributable to partnership items.”
B. WHETHER THE IRS PROVIDED GMI WITH SUFFICIENT
NOTICE OF COMPUTATIONAL ADJUSTMENT
GMI contends that even if the six-month limitations
period under § 6230(c) applies, the notices it received from
the IRS were inadequate to trigger the running of the lim-
itations period and therefore, the six month period never
began. We disagree.
The six-month limitations period is triggered by a “no-
tice of computational adjustment.” § 6230(c)(2)(A) (provid-
ing that the taxpayer must file a refund claim “within 6
months after . . . the [IRS] mails the notice of
Case: 19-1124 Document: 42 Page: 23 Filed: 04/23/2020
GENERAL MILLS, INC. v. UNITED STATES 23
computational adjustment to the partner”). Although
§ 6230(c) does not define what constitutes adequate notice,
“notice must meet the general ‘fairness’ requirements of
due process.” Estate of Yaeger v. Comm’r, 889 F.2d 29, 35
(2d Cir. 1989) (quoting Planned Invs., Inc. v. United States,
881 F.2d 340, 344 (6th Cir. 1989)). In a number of cases,
courts have been called upon to examine notices of defi-
ciency, which are issued pursuant to the deficiency proce-
dures set forth in §§ 6211–16, to determine “whether the
notice imparted enough information to provide the tax-
payer with fair notice.” Scar v. Comm’r, 814 F.2d 1363,
1367–68 (9th Cir. 1987). To be considered adequate, a no-
tice of deficiency must (i) advise the taxpayer that the IRS
determined that a deficiency exists for a particular year,
and (ii) specify the amount of the deficiency or provide the
information necessary to compute the deficiency. Acute
Care Specialists II, 727 F.3d at 813 (considering the inquiry
for whether a notice of deficiency imparted fair notice to be
instructive for deciding whether the IRS provided taxpayer
with fair notice of a computational adjustment); Portillo v.
Comm’r, 932 F.2d 1128, 1132 (5th Cir. 1991) (citing Donley
v. Comm’r, 791 F.2d 383, 384–85 (5th Cir. 1986)); Abrams
v. Comm’r, 814 F.2d 1356, 1357 (9th Cir. 1987); Geiselman
v. United States, 961 F.2d 1, 5 (1st Cir. 1992); Estate of Yae-
ger, 889 F.2d at 35; Benzvi v. Comm’r, 787 F.2d 1541, 1542
(11th Cir. 1986); Del Castillo v. Comm’r, 92 T.C.M.
112, 2006 WL 2346452, at *2 (2006).
The record shows GMI received interest computation
schedules from the IRS dated April 18, 2011 and April 20,
2011 for the 2002–2003 tax years and dated June 14, 2011
for the 2004–2006 tax years. J.A. 334–38, 342–44, 559–63.
The interest computation schedules were accompanied by
cover letters (Letter 3535) 10 informing GMI that: “As
10 The Internal Revenue Manual states that the in-
terest computation cover letter (Letter 3535) should be
Case: 19-1124 Document: 42 Page: 24 Filed: 04/23/2020
24 GENERAL MILLS, INC. v. UNITED STATES
required by Internal Revenue Code Section 6631, [the IRS
is] providing a copy of the schedule we used to calculate
interest on the tax adjustment for the return” for each re-
spective tax year. J.A. 334, 342, 559. The interest compu-
tation schedules themselves identified GMI’s tax
underpayments, payments, and refunds for each of the tax
years and computed the amount of interest (including LCU
interest) on GMI’s tax underpayments that had accrued to
date.
Further, each of the interest computation schedules
identified the “applicable date” in two places: the line titled
“LCU Interest Date” and the line for the earliest date of
“Underpay LCU.” The schedules for the 2002 and 2003 tax
years each stated, “LCU Interest Date: 07/15/2007,” as the
Court of Federal Claims noted. General Mills, 123 Fed. Cl.
at 590 (citing J.A. 335, 337). The interest computation
schedules described the accrued interest as “Underpay” for
the dates prior to and including July 15, 2007 and as “Un-
derpay LCU” for the dates following July 15, 2007.
J.A. 336, 338. The schedules thus informed GMI that in-
terest accrued at the default underpayment rate prior to
and on July 15, 2007, and then at an enhanced interest rate
following July 15, 2007. Id. Likewise, the schedules for
the 2004, 2005, and 2006 tax years each stated, “LCU In-
terest Date: 05/29/2009,” as the Court of Federal Claims
noted. General Mills, 123 Fed. Cl. at 590. The schedules
described the accrued interest prior to and on this date as
“Underpay” and after this date as “Underpay LCU.”
J.A. 560, 562–63. In other words, the schedules showed
used “when providing an interest computation report to the
taxpayer as required by IRC 6631.” Internal Revenue
Manual § 20.2.8.3 (2011). Further, “IRC 6631 requires
that an explanation of interest computation be sent to an
individual (IMF) taxpayer with each notice; which includes
an amount of interest required to be paid.” Id.
Case: 19-1124 Document: 42 Page: 25 Filed: 04/23/2020
GENERAL MILLS, INC. v. UNITED STATES 25
GMI that, after May 29, 2009, the IRS began calculating
accrued interest at a higher interest rate than the default
underpayment rate. Id.
We agree with the Court of Federal Claims’ conclusion
that the schedules provided GMI with fair notice of a com-
putational adjustment as to LCU interest and were ade-
quate to trigger the running of the limitations period. See
General Mills, 123 Fed. Cl. at 590. The schedules clearly
informed GMI that the IRS had imposed the enhanced in-
terest rate for large corporate underpayments at specific
trigger dates. The schedules clearly identified July 15,
2007 and May 29, 2009 as the applicable dates for compu-
ting LCU interest for 2002–2003 and 2004–2006, respec-
tively. The schedules further informed GMI of the amount
of LCU interest actually assessed due to the enhanced in-
terest rate for each tax year.
GMI contends that the notices were defective for vari-
ous reasons. First, GMI says that the IRS was required to
give notice that “a jurisdictional period was being trig-
gered,” and the schedules failed to mention § 6230(c) or the
six-month limitations period. See Appellant’s Br. at 56–57.
GMI also argues that the schedules were tainted by the
failure to mention the Partnership proceedings and the
failure to separate the accrued interest on underpayments
resulting from the corporate proceedings from that of the
Partnership proceedings. These contentions lack merit.
The Court of Federal Claims stated that the notice of com-
putational adjustment need not be in any particular form,
and we agree. General Mills, 123 Fed. Cl. at 589; see Urban
v. Comm’r, 964 F.2d 888, 890 (9th Cir. 1992); Abrams v.
Comm’r, 787 F.2d 939, 941 (4th Cir.1986); Benzvi, 787 F.2d
at 1542. Indeed, the Internal Revenue Code does not define
what a notice of computational adjustment should contain.
In Acute Care Specialists II, the taxpayers claimed that
the IRS failed to provide adequate notice of computational
adjustment, even though the IRS mailed them a
Case: 19-1124 Document: 42 Page: 26 Filed: 04/23/2020
26 GENERAL MILLS, INC. v. UNITED STATES
Form 4549A showing the amount of tax deficiency and the
balance due. 727 F.3d at 812–13. The Form 4549A “did
not, however, specifically indicate that it was a notice of
computational adjustment or state the length of time that
the [taxpayers] had in which to challenge the adjustment.”
Id. at 812. The Seventh Circuit found the Form 4549A met
the standard for adequate notice because it showed “the ex-
istence and amount of the [taxpayers’] tax deficiency.” Id.
at 813. Here, the interest computation schedules gave GMI
fair notice of the tax years at issue, the means to compute
the accrued LCU interest, and the balance due. In other
words, the schedules provided GMI with all the infor-
mation it needed to assess whether the IRS may have erro-
neously computed the computational adjustment.
GMI urges upon us the case of McGann v. United
States, 76 Fed. Cl. 745 (2007), as analogous to this case.
GMI argues that, like in McGann, the IRS provided GMI
with misleading information that contradicts the docu-
ments the Government now relies on for providing ade-
quate notice. GMI points to the cover letters accompanying
the interest computation schedules that stated: “[The IRS]
will either send you a bill within the next few weeks or send
you a statement of any refund.” J.A. 334, 342, 559. Accord-
ing to GMI, the cover letters “suggest[ed] that a refund
could be automatic.” Appellant’s Br. at 56. GMI also sug-
gests that, based on other documents provided by the IRS,
the IRS misled it to believe LCU interest would not be im-
posed. GMI refers to interest computation schedules for
the 2004 and 2005 tax years that were issued by the IRS
prior to, and were later superseded by, the June 14, 2011
interest computation schedules. The superseded interest
computation schedules stated, “LCU Interest Date: LCU
Interest is OFF.” J.A. 339, 341. GMI also points to a
Form 4549-A, issued on March 4, 2011 to inform GMI of its
underpayments for the 2004–2006 tax years. GMI argues
the Form 4549-A was misleading because it showed “0”
(zero) in the line for “Interest (IRC § 6601).” J.A. 483.
Case: 19-1124 Document: 42 Page: 27 Filed: 04/23/2020
GENERAL MILLS, INC. v. UNITED STATES 27
We agree with the Court of Federal Claims that
McGann is not analogous to GMI’s case. General Mills, 123
Fed. Cl. at 590. The Court of Federal Claims determined
that, unlike in McGann, “none of the notices sent by the
IRS to [GMI] in this case were misleading or contradic-
tory.” Id. By stating that the IRS would either send a bill
or send a refund, the cover letters could not have reasona-
bly misled GMI to conclude that it need not file an admin-
istrative refund claim in order to contest the IRS’s
calculation of the amount of LCU interest owed. See
J.A. 334, 342, 559. Nor were the superseded interest com-
putation schedules misleading as to whether LCU interest
would be imposed on GMI. The schedules simply notified
GMI that the IRS would later account for LCU interest in
subsequently issued interest computation schedules.
These documents were not misleading or contradictory as
to identifying the amount of LCU interest due and the
years at issue. See Estate of Yaeger, 889 F.2d at 35 (“The
taxpayer must demonstrate that the notice was mislead-
ing.”).
The Form 4549-A, issued on March 4, 2011 for the
2004–2006 tax years, does not change our conclusion. As a
general rule, notices containing technical defects are still
valid unless the taxpayer has been prejudiced or misled by
the error. See Stewart v. Comm’r, 714 F.2d 977, 986 (9th
Cir. 1983) (“The basic consideration is whether the tax-
payer is surprised and disadvantaged.”) (quoting Comm’r
v. Transp. Mfg. & Equip. Co., 478 F.2d 731, 736 (8th Cir.
1973)); see also Sanderling, Inc. v. Comm’r, 571 F.2d 174,
176 (3d Cir. 1978) (finding that the deficiency notice is
valid if a taxpayer has not been misled as to the year or
amount involved; notice was valid since it referenced cor-
rect year and transaction despite references to wrong
years); Estate of Yaeger, 889 F.2d at 36 (finding that the
deficiency notice was valid, even though it incorrectly iden-
tified year in question, because information in notice was
sufficient for taxpayer to determine actual year in
Case: 19-1124 Document: 42 Page: 28 Filed: 04/23/2020
28 GENERAL MILLS, INC. v. UNITED STATES
question). As the Court of Federal Claims noted, the
Form 4549-A was accompanied by a cover letter informing
GMI of the conditions under which the IRS would impose
the enhanced interest rate on large corporate underpay-
ments. J.A. 478 (“If you are a ‘C’ Corporation, Section
6621(c) of the Internal Revenue Code provides that an in-
terest rate 2% higher than the standard rate of interest will
be charged on [large corporate underpayments].”). We
agree with the Court of Federal Claims that, irrespective
of the documents issued prior to the interest computation
schedules, by the time GMI “receive[d] the detailed interest
computation schedules, [GMI] was well aware of the IRS’s
computation of its LCU interest and the interest accrual
dates the IRS had used.” General Mills, 123 Fed. Cl. at
590. GMI could not have been prejudiced or misled as to
the IRS’s intent to impose LCU interest for the 2004–2006
tax years, as well as the amounts, once it received the in-
terest computation schedules on June 14, 2011.
In sum, at the latest, the six-month limitations period
began to run by April 2011 and June 2011 for the 2002–
2003 and the 2004–2006 tax years, respectively. GMI did
not file its refund claims until March 28, 2013, which was
over a year too late. Accordingly, GMI did not file a timely
claim for refund under the governing statute. See
§ 6230(c)(2)(A).
CONCLUSION
GMI’s refund claims based on alleged IRS computa-
tional errors were brought well after the period established
by the applicable statute of limitations had run. Accord-
ingly, the Court of Federal Claims correctly determined
that it lacked subject matter jurisdiction over GMI’s refund
claims.
AFFIRMED
Case: 19-1124 Document: 42 Page: 29 Filed: 04/23/2020
United States Court of Appeals
for the Federal Circuit
______________________
GENERAL MILLS, INC. AND SUBSIDIARIES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1124
______________________
Appeal from the United States Court of Federal Claims
in No. 1:14-cv-00089-PEC, Judge Patricia E. Campbell-
Smith.
______________________
NEWMAN, Circuit Judge, dissenting.
I respectfully dissent, for this interest refund claim was
timely filed in conformity with the statutory time period for
filing such claim. That period is two or three years after
the payment was made or the tax return was filed, as pro-
vided in 26 U.S.C. § 6511(a):
§ 6511(a). Period of limitation on filing claim.
Claim for credit or refund of an overpayment of any
tax imposed by this title in respect of which tax the
taxpayer is required to file a return shall be filed
by the taxpayer within 3 years from the time the
return was filed or 2 years from the time the tax
was paid, whichever of such periods expires the
Case: 19-1124 Document: 42 Page: 30 Filed: 04/23/2020
2 GENERAL MILLS, INC. v. UNITED STATES
later, or if no return was filed by the taxpayer,
within 2 years from the time the tax was paid.
There was a special 6-month period in TEFRA 1 for filing
claims arising from “computational adjustment” of “part-
nership items,” at 26 U.S.C. § 6230(c)(2)(A):
§ 6230(c)(2)(A). [repealed] Any claim under sub-
paragraph (A) or (C) of paragraph (1) shall be filed
within 6 months after the day on which the Secre-
tary mails the notice of computational adjustment
to the partner.
This 6-month period applied to § 6230(c)(1)(A)(ii), specific
to computational adjustments of a partner’s tax liability
based on settlement, adjustment, or decision:
§ 6230(c)(1)(A)(ii). [repealed] A partner may file
a claim for refund on the grounds that . . . the Sec-
retary erroneously computed any computational
adjustment necessary . . . to apply to the partner a
settlement, a final partnership administrative ad-
justment, or the decision of a court in an action
brought under section 6226 or section 6228(a).
The question on appeal is whether the special 6-month
limitations period applies to the present claim for refund of
1 This provision arose in the Tax Treatment of Part-
nership Items Act of 1982, as Title IV of the Tax Equity and
Fiscal Responsibility Act of 1982 (“TEFRA”). Pub. L.
No. 97-248, §§ 6221–6232, 96 Stat. 324, 648–71. TEFRA
amended the Internal Revenue Code by adding Subchapter
C, codified at 26 U.S.C. §§ 6221–6232. The special 6-month
limitation period was repealed in 2015. See Bipartisan
Budget Act of 2015, Pub. L. No. 114-74, § 1101, 129 Stat.
584, 625 (“(a) REPEAL OF TEFRA PARTNERSHIP
AUDIT RULES.—Chapter 63 of the Internal Revenue
Code of 1986 is amended by striking subchapter C.”)
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GENERAL MILLS, INC. v. UNITED STATES 3
overpayment of interest. Interest is required and calcu-
lated and levied in accordance with the general tax law.
This claim for refund of interest was filed in accordance
with the general rules for filing refund claims under
§ 6511(a). The court errs in applying, to this interest re-
fund claim, the 6-month limitations period that was spe-
cific to computational adjustment of tax on partnership
items.
A
The statutory scheme contained several special provi-
sions to provide clarity and assure absence of conflict be-
tween these statutory periods of limitation. For example,
26 U.S.C. § 6231(a)(6) elaborated that “computational ad-
justment” in these sections relates to the tax treatment of
partnership items:
§ 6231(a)(6). [repealed] The term “computational
adjustment” means the change in the tax liability
of a partner which properly reflects the treatment
under this subchapter of a partnership item.
The payment of interest is not a “tax liability.”
The Internal Revenue Manual elaborates on the mean-
ing of “computational adjustment”:
IRM 8.19.1.6.9.3.1. A direct computational assess-
ment is only appropriate where the effect of the
partnership item on the partner’s tax liability can
be computed mathematically without further de-
terminations at the partner level. If an additional
factual determination is required, the adjustment
cannot be made as a computational adjustment.
Additional elaboration of the role of these provisions is seen
in the statutory definition of “partnership item”:
§ 6231(a)(3). [repealed] The term “partnership
item” means, with respect to a partnership, any
item required to be taken into account for the
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4 GENERAL MILLS, INC. v. UNITED STATES
partnership’s taxable year under any provision of
subtitle A to the extent regulations prescribed by
the Secretary provide that, for purposes of this sub-
title, such item is more appropriately determined
at the partnership level than at the partner level.
Precedent has considered the scope of “partnership item”
under these provisions, see, e.g., Prochorenko v. United
States, 243 F.3d 1359 (Fed. Cir. 2001):
Construing the phrase “attributable to partnership
items” so broadly as to cover claims that depend on
the unique circumstances of an individual partner,
and that only affect that partner, would be contrary
to the system of separate treatment of partnership
items and nonpartnership items established by
Congress in enacting TEFRA.
Id. at 1363; see also Field v. United States, 328 F.3d 58, 59
(2d Cir. 2003); Monti v. United States, 223 F.3d 76, 82 (2d
Cir. 2000); McGann v. United States, 76 Fed. Cl. 745, 753
(2007).
B
On this statutory background, General Mills, Inc. &
Subsidiaries (collectively, “GMI”) filed the subject claim for
refund of overpaid interest, within two years of GMI’s vol-
untary payment of its estimated interest. The IRS denied
the requested refund, and GMI filed this refund suit in the
Court of Federal Claims. 2
GMI outlines the lengthy history of these proceedings
for tax years starting in 2002, and including Partnership
Proceedings and Corporate Proceedings involving
2 General Mills, Inc. v. United States, 123 Fed. Cl.
576 (2015) (“Fed. Cl. Op.”).
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GENERAL MILLS, INC. v. UNITED STATES 5
overlapping entities. The tax obligations were eventually
settled and paid.
For the 2002–2003 tax years, GMI entered into settle-
ment agreements with the IRS in July of 2010, using Form
870-LT(AD) entitled Settlement Agreement for Partnership
Items and Partnership Level Determinations as to Penal-
ties, Additions to Tax and Additional Amounts and Agree-
ment for Affected Items, which states that interest will be
assessed as “provided by law.” J.A. 257, 262, 267, 272, 278,
287, 296, 305, 314, 323. The IRS also sent GMI a Form
5278 in August 2010 that provided computational adjust-
ments in the assessed tax, which included a letter that
stated: “We will adjust your account and figure the inter-
est. The Service Center will send a bill for any additional
amount you owe.” J.A. 332. GMI states, without contra-
diction, that “No such bill was ever sent.” GMI Br. 14.
For the 2004–2006 tax years, GMI entered into settle-
ment agreements with the IRS in November of 2010, using
Form 870-LT(AD), which stated that interest will be as-
sessed as “provided by law.” J.A. 380, 388, 398, 408, 418,
428, 438, 448, 458, 468. The IRS sent GMI Form 4549-A,
entitled Income Tax Discrepancy Adjustments, which
shows “0” on the interest lines for years 2004–2006.
J.A. 482–83.
GMI states that on April 11, 2011 it calculated and paid
its estimated amount of interest for both the 2002–2003
and 2004–2006 tax periods “in order to stop the accrual of
interest.” GMI Br. 15, 20.
On April 18, April 20, and June 14, 2011, the IRS sent
GMI Letters 3535 and attachments, stating that:
As required by Internal Revenue Code Section
6631, we are providing a copy of the schedule we
used to calculate interest on the tax adjustment for
the return identified above. This computation is
for your information. The enclosed Interest
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6 GENERAL MILLS, INC. v. UNITED STATES
Computation Schedule is not a bill for tax due. We
will either send you a bill within the next few
weeks or send you a statement of any refund.
J.A. 334, 342, 559. Neither bill nor refund followed. The
Majority states that “the schedules provided GMI with fair
notice of a computational adjustment as to LCU interest
and were adequate to trigger the running of the limitations
period” of § 6230(c). Maj. Op. at 25. This is not statutory
notice under the tax law.
This 6-month limitations period ends “6 months after
the day on which the Secretary mails the notice of compu-
tational adjustment to the partner.” 26 U.S.C.
§ 6230(c)(2)(A). However, the notice relied on by the Ma-
jority “bears no indication that it is to be taken as a notice
of computational adjustment, nor does it disclose that [the
taxpayer] would have had to contest any amounts said to
be due within a six-months’ period thereafter.” McGann,
76 Fed. Cl. at 760. At best, the Majority has pointed to
documents from which GMI may “decipher the position
that the IRS might in fact be taking respecting interest.”
Id. at 761. The inadequacy of notice of the amount of in-
terest is conspicuous; for there was no assessment of inter-
est during the period now held to have exhausted the 6-
month refund period.
The record contains a copy of a Global Settlement
Agreement, IRS Form 870-AD, prepared by the IRS and
executed by GMI in November 2011 and the IRS in Decem-
ber 2011, that states that:
The Taxpayer reserves the right to challenge Inter-
est calculations made by the Service with respect
to all years/periods covered by [the settlement
agreement].
J.A. 604–05. GMI points out that by the time of this agree-
ment, which stated GMI’s reserved right to challenge inter-
est calculations, “the six-month limitations period that the
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GENERAL MILLS, INC. v. UNITED STATES 7
government now argues applies had expired.” GMI Reply
Br. 23. The government does not dispute this statement,
or explain its position in contradiction of the explicit state-
ment in the agreement it drafted.
C
The refund claim here at issue is not for a “computa-
tional adjustment” of a “partnership item.” It is for refund
of an overpayment of interest. This claim is subject to the
standard two-year period of 26 U.S.C. § 6511(a).
The government takes the position that this refund
claim is barred by the 6-month period of § 6230(c). The
Court of Federal Claims agreed, holding that it is it “irrel-
evant” whether this refund claim is “attributable to a part-
nership item” as required by § 6230(c). Fed. Cl. Op. at 592–
93. My colleagues now agree.
My colleagues hold that this is a matter of “preemp-
tion” between conflicting statutes, whereby the narrower
statute preempts the general one. Maj. Op. at 20. How-
ever, there is no conflict between the 6-month period of
§ 6230(c) and the 2–3 year period of § 6511(a), for they ap-
ply to different aspects of the tax law. Section 6230(c) is
specific to the 6-month period for review of computational
adjustment of partnership items, and § 6511 sets the
standard 2–3 year period for refund claims.
Throughout the TEFRA statute, the legislature care-
fully defined its focus and clarified its provisions. For ex-
ample, section 6511(g) made explicit that only partnership
items are subject to the 6-month limit:
§ 6511(g). [repealed] In the case of any tax im-
posed by subtitle A with respect to any person
which is attributable to any partnership item (as
defined in section 6231(a)(3)), the provisions of . . .
subsections (c) and (d) of section 6230 shall apply
in lieu of the provisions of this subchapter [which
includes section 6511(a)].
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8 GENERAL MILLS, INC. v. UNITED STATES
The statute itself foresaw, and forestalled, any conflict
between these periods of limitation. There is a “strong pre-
sumption that repeals by implication are disfavored and
that Congress will specifically address preexisting law
when it wishes to suspend its normal operations in a later
statute.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624
(2018) (citing United States v. Fausto, 484 U.S. 439, 452–
53 (1988)) (internal quotation marks and alterations omit-
ted); see also id. (“When confronted with two Acts of Con-
gress allegedly touching on the same topic, this Court is not
at liberty to pick and choose among congressional enact-
ments and must instead strive to give effect to both.”) (in-
ternal quotation marks omitted).
The legislative record contains no hint that Congress
intended to truncate the standard period for filing interest
refund claims and to enlarge the explicit scope of § 6230(c).
The enactment and then cancellation of the special 6-
month period of limitations for computational adjustments
of tax on partnership items did not change the general 2–3
year statutory period applicable to a claim for refund of in-
terest paid.
The government’s present theory, now supported by
this court, confronts constitutional principles of judicial re-
view, as well as the policy embodied in adjudication of tax-
payer issues. See, e.g., United States v. Merriam, 263 U.S.
179, 188 (1923) (“If the words are doubtful, the doubt must
be resolved against the government and in favor of the tax-
payer.”); Bowers v. New York & Albany Lighterage Co., 273
U.S. 346, 350 (1927) (“The provision is a part of a taxing
statute; and such laws are to be interpreted liberally in fa-
vor of the taxpayers.”).
These principles of fairness are not obsolete, as the
panel majority proposes. See, e.g., United Dominion In-
dus., Inc. v. United States, 532 U.S. 822, 839 (2001)
(Thomas, J., concurring) (“[I]n cases such as this one, in
which the complex statutory and regulatory scheme lends
Case: 19-1124 Document: 42 Page: 37 Filed: 04/23/2020
GENERAL MILLS, INC. v. UNITED STATES 9
itself to any number of interpretations, we should be in-
clined to rely on the traditional canon that construes reve-
nue-raising laws against their drafter.”). This is not a
matter whereby the court can simply look to “every other
material part of the statute” and “their legislative history,”
as in White v. United States, 305 U.S. 281, 292 (1938), on
which the panel majority relies; its interpretation requires
preemption of the general limitation statute. Maj. Op. at
16 n.8, 20. As in this case, “if doubt exists as to the con-
struction of a taxing statute, the doubt should be resolved
in favor of the taxpayer.” Xerox Corp. v. United States, 41
F.3d 647, 658 (Fed. Cir. 1994) (quoting Hassett v. Welch,
303 U.S. 303, 314 (1938)); see also Irwin v. Gavit, 268 U.S.
161, 168 (1925) (although “the tax laws should be construed
favorably for the taxpayers . . . that is not a reason for cre-
ating a doubt or for exaggerating one”).
CONCLUSION
GMI has the clear right to be heard on its claim for re-
fund of interest paid, which claim was filed within the 2-
year period set by § 6511(a) for refund of payments made.
The Court of Federal Claims, and now my colleagues, err
in ruling that this claim was required to be filed within 6
months of an unknown date for which no notice was given.
I respectfully dissent.