Warren Parchan v. United States

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 06 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WARREN AND BARBARA PARCHAN, No. 11-55848
Plaintiffs - Appellants, D.C. No. 8:10-cv-01225-JST-
MLG
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Josephine S. Tucker, District Judge, Presiding
Argued and Submitted January 7, 2013
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and KORMAN**,
Senior District Judge.
Warren and Barbara Parchan appeal the dismissal of their claims against the
United States for a partial tax refund for the 2001 and 2002 tax years. With regard to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
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the 2001 tax year, the district court properly found that the Parchans had failed to
satisfy the statutes of limitation applicable to their refund claim and eventual lawsuit.
Because refund lawsuits against the government must fall within the narrow statutory
waiver of sovereign immunity, the statute of limitations applicable to these suits, 26
U.S.C. § 6532(a), is jurisdictional. Yuen v. United States, 825 F.2d 244, 245 (9th Cir.
1987). Thus, the district court properly dismissed the Parchans’ 2001 claims for lack
of jurisdiction.
Nor are the Parchans entitled to take advantage of the mitigation provisions in
the Internal Revenue Code to circumvent the statute of limitations. As the district
court explained, the Parchans did not suffer a “double disallowance” within the
meaning of 26 U.S.C. § 1312(4), because they did claim a deduction for the legal fees
at issue in a return that was accepted by the IRS. The fact that the IRS rejected as
untimely a later return, which claimed the deduction under a different statutory
provision, does not qualify the Parchans for relief under the statute. Although the
Parchans may be unhappy with their original choice of deduction, “[t]he mitigation
provisions do not constitute a general equitable exception to the limitations period.”
Schwartz v. United States, 67 F.3d 838, 840 (9th Cir. 1995).
As to the 2002 tax year, the Parchans previously elected to sue for a
determination of their liability for that year in the Tax Court. By so doing they lost
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their right to litigate their tax claims in the district court. 26 U.S.C. § 7422(e); Flora
v. United States, 362 U.S. 145, 166 (1960). Moreover, the Parchans entered into a
stipulated agreement with the IRS in that case establishing their liability for the
amount ultimately paid; they are not entitled to recover a tax they admittedly owe
despite the IRS’s illegal method of assessment. Van Antwerp v. United States, 92 F.2d
871, 873 (9th Cir. 1937); see also Powelson v. United States, 979 F.2d 141, 145 (9th
Cir. 1992).
AFFIRMED.
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