Gregory v. United States ( 2020 )

In the United States Court of Federal Claims
No. 19-386T
Filed: August 10, 2020
CAMERON GREGORY AND
KATHLEEN GREGORY, Keywords: Signature
Requirement; Waiver
Plaintiffs/Counter-Defendants, Doctrine; 28 U.S.C. § 7422;
Treas. Reg. § 301.6402-2;
v. Angelus Milling Co. v.
C.I.R., 325 U.S. 293 (1945);
UNITED STATES, I.R.C. § 6061; I.R.C. § 6065;
Subject Matter Jurisdiction.
Defendant/Counter-Claimant.
Kathryn N. Magan, Magan Law, PLLC, North Richland Hills, TX, for Plaintiffs.
Katherine R. Powers, Trial Attorney, Tax Division, U.S. Department of Justice, with whom were
Mary M. Abate, Assistant Chief, Court of Federal Claims Section, David I. Pincus, Chief, Court
of Federal Claims Section, and Richard E. Zuckerman, Principle Deputy Assistant Attorney
General, U.S. Department of Justice, Washington, DC, for Defendant.
MEMORANDUM OPINION & ORDER
TAPP, Judge.
In this tax refund case, Plaintiffs Cameron and Kathleen Gregory (collectively, the
“Gregorys” or “taxpayers”) seek a $1,039 federal income tax refund for the 2015 tax year.
(Second Redacted Compl. (“Compl.”) at 7, ECF No. 31). The Gregorys claim they are entitled to
the employer-provided housing exclusion under 28 U.S.C. § 119. (Compl., at 5–6). Defendant,
the United States, now moves to dismiss the Gregorys’ Complaint pursuant to RCFC 12(b)(1),
alleging that the Gregorys failed to sign the returns relevant to their claim and failed to properly
authorize a representative to sign on their behalf. (Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 2,
ECF No. 40). On June 26, 2020, the Gregorys filed their Response, arguing that the IRS waived
the signature requirements by examining and taking action on the merits of their claim, as
evidenced by the IRS’s November 2018 and December 2018 letters. (Pls.’ Resp., ECF No 41).
The United States filed its Reply on July 17, 2020. (Def.’s Reply, ECF No. 44). This matter is
now fully briefed and ripe for decision.
As explained below, signing a tax return under penalty of perjury is a jurisdictional
requirement in tax refund suits that cannot be waived. Therefore, the Court GRANTS the United
States’ Motion to Dismiss.
I. Background
The Gregorys are United States citizens and government defense contractors that have
worked at Joint Defense Facility Pine Gap near Alice Springs, Australia, since at least 2015.
(Compl. at 4). The Gregorys timely filed their original federal return Form 1040 for tax year
2015 on or about April 15, 2016, which claimed a refund of $348.00. (Compl. at 4, Ex. A).
On June 12, 2017, the IRS issued the Gregorys a Notice for taxable year 2015, proposing
changes to the Gregorys’ original return that would have resulted in an additional tax assessment
of $3,409. (Pls.’ Resp. at 2; Def.’s Mot. at 3). The Gregorys submitted a letter expressing their
disagreement with these proposed changes. (Def.’s Mot. at 4). The letter was signed with the
Gregorys’ original signatures. (Id., App. at 34). Ultimately, the IRS did not assess the $3,409
proposed in the June 12, 2017 Notice. (Pls.’ Resp. at 2; Def.’s Mot. at 4).
In late 2018, the Gregorys retained Castro & Co., LLC (“Castro”), to review their 2015
tax returns, prepare an amended return to claim the employer-provided lodging exclusion under
28 U.S.C. § 119(a)(2), and correct other income reporting errors. (Compl. at 4). 1 Thereafter,
Castro timely filed the Gregorys’ 2015 amended tax return (Form 1040X), claiming exclusions
for foreign earned income and employer-provided lodging. (See id. at 5, Ex. B). The amended
return did not contain the signatures of either Kathleen or Cameron Gregory. 2 (Pls.’ Resp. at 7–
8). Instead, the amended return was signed by Tiffany Michelle Hunt (“Hunt”), a tax preparer
associated with Castro. (Id.). The amended return was not accompanied by a Form 2848
authorizing Hunt to sign amended returns on the taxpayers’ behalf. 3 (Id. at 8).
In a November 19, 2018 letter, the IRS notified the Gregorys that in processing their
return, the IRS “made some corrections to [their] form 1040X which may have affected [their]
refund or balance due” and that “[t]hese changes may have been due to an error on your original
return or an additional adjustment we made to your account, which you should have been
notified of in a separate notice.” (Compl., Ex. C). The letter specified that the Gregorys’ original
return included other income and taxes on that income, which was not included on the amended
return. (Id.). On December 3, 2018, the IRS sent the Gregorys a Form Notice CP21B indicating
that the requested changes regarding the Gregorys’ self-employment tax, foreign-earned income
exclusion, and others were granted. (Compl., Ex. D (“We made the changes you requested to
your 2015 Form 1040 to adjust your [self-employment tax, foreign earned income exclusion, and
other income].”)). On the same day as the December letter, the IRS issued the Gregorys a refund
in the amount of $21,252, which was $1,039 less than what the Gregorys requested in their
original amended return. (See Compl. at 5, 7). On March 13, 2019, the Gregorys filed this tax
refund suit seeking a $1,039 refund for tax year 2015. (Id. at 7).
1
This is one of several cases filed in the Court of Federal Claims involving refund claims
prepared by Castro & Co. See Dixon v. United States, 147 Fed. Cl. 469 (2020), appeal docketed,
No. 20-1584 (Fed. Cir. Mar. 2, 2020); Hall v. United States, No. 19-463T, 2020 WL 1982877(Fed. Cl. Apr. 27, 2020); Clark v. United States, No. 19-713; Murray & Buchanan v. United
States, No. 19-1838; Mattson v. United States, No. 19-1113; Brown v. United States, No. 19-848.
2
On the original and amended returns for taxable year 2015, the taxpayers are identified as
Kathleen Henley and Cameron Gregory. The discrepancy in surnames for Kathleen has not been
explained. (See Compl., Ex. A, Ex. B).
3
The 2014 version of IRS Form 2848 is available at https://www.irs.gov/pub/irs-prior/f2848--
2014.pdf.
2
II. Standard of Review
The burden of establishing subject matter jurisdiction rests with the plaintiff, who must
do so by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). When
considering a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true
all uncontroverted factual allegations made by the non-movant and draws all inferences in the
light most favorable to that party. Estes Exp. Lines v. United States, 739 F.3d 689, 692 (Fed. Cir.
2014). Pursuant to RCFC 12(b)(1) and 12(h)(3), the Court must dismiss claims that do not fall
within its subject matter jurisdiction.
This Court’s jurisdiction is generally delimited by the Tucker Act, 28 U.S.C. §1491. The
Tucker Act limits the Court’s jurisdiction to suits “against the United States founded either upon
the Constitution, or any act of Congress or any regulation of an executive department, or upon
any express or implied contract with the United States, or for liquidated or unliquidated damages
not sounding in tort.” 28 U.S.C. § 1491(a). Pursuant to the Tucker Act, the Court of Federal
possesses subject matter jurisdiction over tax refund suits if certain prerequisites are met. See
United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008). First, a plaintiff must
satisfy the full payment rule, which requires that the principal tax deficiency be paid in full. See
Shore v. United States, 9 F.3d 1524, 1526–27 (Fed. Cir. 1993); see also Flora v. United States,
357 U.S. 63, 68 (1958). Second, the plaintiff must duly file a tax refund claim with the IRS. See
26 U.S.C. § 7422(a) (“No suit or proceeding shall be maintained in any court for the recovery of
any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . .
until a claim for refund or credit has been duly filed with the Secretary [of the Treasury] . . .”).
Third, the plaintiff must provide the amount, date, and place of each payment to be refunded, as
well as a copy of the refund claim when filing suit in the Court of Federal Claims. RCFC 9(m).
Unless a plaintiff satisfies these prerequisites, the Court of Federal Claims lacks jurisdiction to
hear a tax refund suit. See Clintwood Elkhorn Mining Co., 553 U.S. at 4.
III. Discussion
The United States seeks dismissal of the Gregorys’ Complaint on grounds that the Court
lacks subject matter jurisdiction because the Gregorys failed to submit a “duly filed” tax return
with the IRS. (Def.’s Mot. at 2). Specifically, the United States argues that because the Gregorys
failed to sign their 2015 amended tax returns, said returns were not “duly filed.” (Def.’s Mot. at
5–6). This argument is based on the second factor set forth above. Indeed, the Gregorys concede
that they did not sign their 2015 amended returns. (Pls.’ Resp. at 8). However, the Gregorys
argue that the United States waived its formal requirements when it investigated the merits of the
Gregorys’ amended return, noting that the IRS eventually concluded the Gregorys did qualify for
the foreign-earned income exclusion but did not qualify for the Section 119 employer-provided
lodging exclusion. (Pls.’ Resp. at 1). In its Reply, the United States contends that the waiver
doctrine does not apply to the signature verification requirement, and even if it did, the actions in
this case did not amount to waiver of the signature requirement. (Def.’s Mot. at 2).
As explained below, the Court agrees that the Gregorys’ failed to file a proper tax refund
claim and that subject matter jurisdiction is therefore lacking. As such, there is no occasion to
address whether the IRS waived the regulatory signature requirements in this case.
3
A. Requirements to Bring a Tax Refund Claim
To recover an erroneous tax refund assessment, the taxpayer must comply with the tax
refund scheme established in the Internal Revenue Code (“I.R.C.”). United States v. Clintwood
Elkhorn Min. Co., 553 U.S. 1, 4 (2008). Under 28 U.S.C. § 7422:
No suit or proceeding shall be maintained in any court for the recovery of any
internal revenue tax alleged to have been erroneously or illegally assessed or
collected, or of any penalty claimed to have been collected without authority,
or of any sum alleged to have been excessive or in any manner wrongfully
collected, until a claim for refund or credit has been duly filed with the
Secretary, according to the provisions of law in that regard, and the
regulations of the Secretary established in pursuance thereof.
Thus, in order to comply with the tax refund scheme established by the I.R.C., a taxpayer return
must be duly filed. To be “duly filed,” a return:
[M]ust set forth in detail each ground upon which a credit or refund is claimed
and facts sufficient to apprise the Commissioner of the exact basis thereof.
The statement of the grounds and facts must be verified by a written
declaration that it is made under the penalties of perjury. A claim which does
not comply with this paragraph will not be considered for any purpose as a
claim for refund or credit.
Treas. Reg. § 301.6402-2(b)(1) (emphasis added).
The signature requirements are not trivial, as “[t]he perjury charge based on a false return
has been deemed ‘one of the principal sanctions available to assure that honest returns are
filed.’” Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir. 1985) (quoting Vaira v.
Commissioner, 52 T.C. 986, 1005, rev’d on other grounds, 444 F.2d 770 (3d Cir. 1971)). The
only exception to this requirement is when a legal representative certifies the claim and attaches
evidence of a valid power of attorney to the return. Treas. Reg. § 301.6402-2(e). The power of
attorney must contain certain identifying information, including a “[d]escription of the matter(s)
for which representation is authorized,” and “[a] clear expression of the taxpayer’s intention
concerning the scope of authority granted to the recognized representative(s).” Treas. Reg. §
601.503(a).
Here, after the amended return containing Hunt’s signature was filed, the IRS received a
Form 2848 for Cameron Gregory that named Hunt as purported power of attorney before the
IRS. (Def.’s Mot. at 8, Ex. 5). Notably, the Form 2848 did not contain a clear expression of
Cameron Gregory’s intention to authorize Hunt to sign a Form 1040X return on his behalf. (See
Def.’s Mot., Ex. 5). In any event, the Form 2848 was not physically attached to the amended
return as required by Treas. Reg. § 301.6402-2(e). Thus, the Gregorys’ amended return did not
comply with the Treasury Regulations. The Gregorys conceded that their 2015 amended return
did not comply with Treas. Reg. § 301.6402-2(b) and (e) in that: (1) the return was not signed by
the taxpayers, but rather contained Hunt’s signature; and (2) the amended return was not
accompanied by a Form 2848 sufficient to authorize Hunt to sign on their behalf. (Pls.’ Resp. at
8 (“Thus, the IRS had in its possession all requirements needed in order determine that Plaintiffs’
claim did not comply with [the] formal requirements in [the Treasury Regulations]”)).
4
Nevertheless, the Gregorys contend that the IRS waived the signature requirements by
investigating the merits of the amended return. The Court disagrees.
B. The Waiver Doctrine
The IRS may waive compliance with its regulatory requirements by investigating the
merits of a refund claim and taking action upon it. Angelus Milling Co. v. C.I.R., 325 U.S. 293,
296 (1945). The waiver doctrine, however, only applies to regulatory requirements and not to
statutory requirements mandated by Congress. Id. at 296 (“Insofar as Congress has made explicit
statutory requirements; they must be observed and are beyond the dispensing power of Treasury
Officials.”). Where the doctrine applies, three requirements must be met for waiver to be found:
(1) the IRS must have “investigated the merits of [the refund] claim”; (2) the IRS must have
“taken action” on the claim; and (3) the IRS’s determination to “dispense with” the regulatory
requirements and to examine the merits of the claim must be “unmistakable.” Id.The I.R.C. addresses the signature requirements in two pertinent statutes. Under I.R.C. §
6061, 4 “any return, statement, or other document required to be made under any provision of the
internal revenue laws or regulations shall be signed in accordance with forms or regulations
prescribed by the Secretary.” Under I.R.C. § 6065, “[e]xcept as otherwise prescribed by the
Secretary, any return, declaration, statement, or other document required to be made under any
provision of the internal revenue laws or regulations shall contain or be verified by a written
declaration that is made under the penalties of perjury.” (emphasis added). Like I.R.C. §§ 6061
and 6065, Treas. Reg. § 301.6402-2(b) requires taxpayers to sign their returns under penalties of
perjury. The regulations allow for a person other than the taxpayer to sign under penalties of
perjury only if a valid Form 2848 accompanies the return. Treas. Reg. § 301.6402-2(c).
The Gregorys posit that the taxpayer signature requirement is regulatory, and therefore
can be waived by the IRS. (Pls.’ Resp. at 6–7). Distilled further, the Gregorys argue that the
I.R.C. provisions above do not necessarily mandate the signature of the taxpayer, but rather
someone’s signature, not necessarily the taxpayer’s, under the penalties of perjury. (Id. at 6). The
Gregorys maintain that Treas. Reg. § 301.6402-2(b) and (e) are the regulatory provisions
requiring an original taxpayer signature or a power of attorney attached if an agent signs on the
taxpayer’s behalf. (Id. at 6–7).
The United States counters that I.R.C. creates a default statutory rule that is not waivable
by the IRS. (Def.’s Reply at 6) (“Section 6061 and 6065 should . . . be understood to create a
default rule that refund claims must be signed by the taxpayers under the penalties of perjury.”).
In addressing the relationship between the I.R.C. and the Treasury Regulations, the United States
contends that the regulations merely operate to relax the statutory default rule and specify how
the statutory requirements may be met. (Id. at 6–7). 5 In other words, the United States argues that
4
I.R.C. § 6061 contains exceptions not applicable here.
5
In the alternative, the United States argues that even if the taxpayer signature requirement were
regulatory and not statutory, the only portion of said regulations that are waivable by the IRS are
those relating to the refund claim-specificity requirement of Treas. Reg. § 301.6402-2(b)(i),
stating that the refund claim set forth the “grounds upon which . . . a refund is claimed” and
“facts sufficient to apprise the Commissioner of the exact basis thereof.” (Def.’s Reply at 10).
However, because the Court finds the statutory signature requirement is not waivable, there is no
5
if the IRS “dispensed with” the regulatory modifications allowing for an accompanied power of
attorney, the unmodified default rule imposed by the I.R.C. would nonetheless apply to require
the taxpayer’s signature. (Id.). The United States maintains that, as a practical matter, the
Gregorys’ interpretation of Section 6061 and 6065 would allow a taxpayer to avoid liability for
perjury while still complying with the I.R.C. so long as anybody has signed the returns. (Id. at 9).
The Court agrees with the United States on these points.
The taxpayer signature requirement is statutory in nature and thus the waiver doctrine is
inapplicable. I.R.C. §§ 6061, 6065; Angelus Milling, 325 U.S. at 296. Like I.R.C. §§ 6061 and
6065, Treas. Reg. § 301.6402-2(b) requires taxpayers to sign their returns under penalties of
perjury. The regulations allow for a person other than the taxpayer to sign under penalties of
perjury only if a valid Form 2848 accompanies the return. Treas. Reg. § 301.6402-2(c). The
Gregorys’ interpretation of the regulations, which would allow anyone to sign a taxpayer’s return
regardless of whether a valid Form 2848 accompanies the return, is incongruent with this clear
regulatory framework. To adopt the Gregorys’ interpretation would also thwart the regulations’
evident purpose. The IRS’s requirement that taxpayers sign under penalties of perjury enables
the IRS “to enforce directly against a rogue taxpayer.” Dixon v. United States, 147 Fed. Cl. 469,
476 n.5 (2020) (citing United States v. Beverley, 775 Fed. App’x. 468, 472 (11th Cir. 2019)). A
tax preparer, such as Hunt, cannot be held liable for perjury in the context of signing a tax return.
See id. (collecting statutes). The United States correctly asserts that the Gregorys’ interpretation
would allow a taxpayer to avoid liability for perjury while satisfying the I.R.C so long as
someone else signs their returns. (Def.’s Reply at 9). Thus, the Court concludes that the taxpayer
signature requirements are not waivable and subject matter jurisdiction over the Gregorys’ claim
is therefore lacking. In light of this conclusion, there is no occasion to discuss the alternative
arguments regarding whether a waiver occurred in this case.
IV. Conclusion
The Gregorys admit that their 2015 amended return did not contain a valid signature and
thus was not “duly filed.” The IRS may not waive the statutory taxpayer signature requirement.
Consequently, the Court lacks jurisdiction to hear this suit. Therefore, the Court GRANTS the
United States’ Motion to Dismiss, (ECF No. 40), pursuant to RCFC 12(b)(1).
Accordingly, there being no just reason for delay, the Clerk is directed to ENTER
judgment, pursuant to RCFC 54(b), dismissing the Complaint.
In addition, the parties shall file a Joint Status Report on or before Monday, August 17,
2020 proposing a schedule for further proceedings concerning the United States’ counterclaims.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
occasion to address this alternative argument.
6