Computervision v. U.S. [Supplemental Order] , 467 F.3d 1322 ( 2006 )

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit
05-5014
COMPUTERVISION CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
John S. Brown, Bingham McCutchen LLP, of Boston, Massachusetts, argued for
plaintiff-appellant. With him on the brief were George P. Mair, Donald-Bruce Abrams
and Matthew D. Schnall.
Bruce R. Ellisen, Attorney, Tax Division, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. With him on the brief were Eileen J.
O’Connor, Assistant Attorney General; Richard T. Morrison, Deputy Assistant Attorney
General; and Gilbert S. Rothenberg and Francesca U. Tamami, Attorneys.
Appealed from: United States Court of Federal Claims
Judge Marian Blank Horn
United States Court of Appeals for the Federal Circuit
05-5014
COMPUTERVISION CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: August 30, 2006
___________________________
SUPPLEMENTAL OPINION ON PETITION FOR REHEARING
Before NEWMAN, RADER, DYK, Circuit Judges.
PER CURIAM.
Computervision Corporation (“Computervision”) petitions for rehearing en banc.
The government by letter requests that we correct an error in our original opinion. We
reaffirm our earlier decision affirming the decision of the United States Court of Federal
Claims, in which we denied Computervision’s claims for interest suspension and interest
netting. Computervision Corp. v. United States, 445 F.3d 1355 (Fed. Cir. 2006).
In its petition for rehearing, Computervision challenges our denial of its interest
suspension claim on several grounds, but does not seek rehearing on the interest
netting issue. However, in a May 25, 2006, letter, the government informed us that the
interest netting portion of our opinion contained an apparent error, due largely to an
error in the government’s brief.
In our original decision, we held that Computervision failed to satisfy the
requirement for retroactive application of the interest netting statute because under our
decision in Federal National Mortgage Association v. United States, 379 F.3d 1303,
1311 (Fed. Cir. 2004) (“FNMA”), the statute applies retroactively only if the statute of
limitations is open with respect to both the underpayment and overpayment.
With respect to the underpayment interest limitations period based on
representations contained in the government’s brief, our opinion stated:
A claim for a refund of paid underpayment interest is barred if not filed
within the later of three years from the date the return was filed or two
years from the date the interest was paid. 26 U.S.C. § 6511. The
underpayment interest in this case is the 1982 deficiency interest, which
was paid on April 28, 1989. The limitations period for the underpayment
closed two years later, on April 28, 1991 . . . .
Computervision, 445 F.3d at 1373-74.
With respect to the overpayment interest limitation period, we stated:
A claim for interest from overpayments must be filed within six years after
the due date of the return that gave rise to the overpayment interest. See
28 U.S.C. § 2401 (2000). In Computervision’s case, the overpayment
limitations periods expired on March 15, 1989, for the 1982 tax year;
March 15, 1990, for the 1983 tax year; and August 2, 1991, for the 1984
tax year.
Computervision, 445 F.3d at 1374. The government states that the overpayment
portion of the opinion is not correct and suggests revising it to read as follows:
A suit for interest from overpayments must be filed within six years after
the date on which the refund or credit of the overpayment was allowed,
i.e., the date on which the IRS authorized the scheduling of an
overassessment. See 28 U.S.C. § 2401 (2000); 26 U.S.C. § 6407; Barnes
v. United States, 133 Ct. Cl. 546, 548-49, 137 F.Supp. 716, 718-19
(1956); General Instrument Corp. v. United States, 33 Fed. Cl. 4, 8 (1995);
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Rev. Rul. 56-506, 1956-2 C.B. 959; Rev. Proc. 99-43, § 4.02(2), 1999-2
C.B. 579. In Computervision’s case, the overpayment limitations periods
expired on October 24, 1989, for the 1982 tax year; November 5, 1990, for
the 1983 tax year; and August 2, 1991, for the 1984 tax year. All these
periods were closed as of the July 22, 1998, critical date specified in §
3301(c)(2).
Government’s Letter of Counsel at 1-2 (May 25, 2006).
In a June 9, 2006, letter, we invited Computervision to respond to the
government’s proposed revision. In response, Computervision urged that the
government’s proposed revision was based on “unsupported factual assumptions,”
because the record does not contain the documents necessary to ascertain “the date on
which the IRS authorized the scheduling of an overassessment.” Computervision’s
Response at 1 (June 14, 2006).
We need not resolve the question of when the overpayment limitations periods
expired, because under our decision in FNMA, both the overpayment and
underpayment limitations period must remain open on July 22, 1998, in order for the
interest netting statute to apply retroactively. See FNMA, 379 F.3d at 1311. Our earlier
opinion concluded that the limitations period on Computervision’s claim for
underpayment interest expired on April 28, 1991, long before the July 22, 1998, critical
date specified in section 3301(c)(2).1 Nothing in the government’s letter calls that
conclusion into question.
However, Computervision also contends that the applicable statute of limitations
as to both overpayments and underpayments remains open within the meaning of the
1
A claim for credit or refund of paid underpayment interest is barred if not
filed within the later of three years from the date the return was filed or two years from
the date the interest was paid. 26 U.S.C. § 6511 (2000).
05-5014 3
statute while a lawsuit is pending before the Tax Court or the Court of Federal Claims.
Computervision’s Response at 2 (June 14, 2006). This issue was not raised in
Computervision’s petition for rehearing. In any event, we rejected this argument in our
original decision, and we see no reason to revisit it. See Computervision, 445 F.3d at
1374.
Computervision’s other contentions with respect to our decision on the interest
suspension claim are without merit. Accordingly, Computervision’s petition for
rehearing is denied.
05-5014 4