Orlova v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5041
IRINA ORLOVA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Irina Orlova, of Narberth, Pennsylvania, pro se.
Deborah K. Snyder, Attorney, Appellate Section, Tax Division, United States
Department of Justice, of Washington, DC, for defendant-appellee. With her on the
brief were John A. DiCicco, Acting Assistant Attorney General, and Jonathan S. Cohen,
Attorney.
Appealed from: United States Court of Federal Claims
Judge Lynn J. Bush
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5041
IRINA ORLOVA
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in Consolidated
Case Nos. 08-CV-42 and 08-CV-43, Judge Lynn J. Bush.
____________________________
DECIDED: October 6, 2009
____________________________
Before LOURIE, DYK, and PROST, Circuit Judges.
PER CURIAM.
Irina Orlova appeals from the final decision of the United States Court of Federal
Claims (“Claims Court”) dismissing her complaint for lack of subject matter jurisdiction.
Orlova v. United States, Nos. 08-CV-42 & 08-CV-43 (Fed. Cl. Dec. 4, 2008). Because
we agree that the Claims Court did not have subject matter jurisdiction over Orlova’s
refund claims, we affirm.
BACKGROUND
Orlova is a Russian citizen who came to the United States in 1999. In April 2002,
Orlova filed her income tax return for the year 2001. In her return, Orlova elected a
filing status of single non-resident alien and listed a permanent residence address in
Moscow, Russia. Orlova had paid her taxes for 2001 through withholding credits in the
amount of $2,187.93 and received a refund of $68.93. In March 2003, Orlova filed her
income tax return for the year 2002. Orlova once again elected a filing status of single
non-resident alien. Orlova had paid her taxes for 2002 through withholding credits in
the amount of $2,632 and received a refund of $244. Later, in 2007, Orlova filed
amended income tax returns for the years 2001 and 2002. Orlova sought refunds in the
amount of $311 for the year 2001 and $457 for the year 2002. The Internal Revenue
Service (“IRS”) disallowed both refund claims as untimely.
On January 18, 2008, Orlova commenced two actions in the Claims Court,
seeking to recover income taxes allegedly overpaid for 2001 and 2002. The Court
consolidated the two actions. The government filed a motion to dismiss Orlova’s claims
for lack of subject matter jurisdiction. Orlova opposed the government’s motion. On
December 4, 2008, the Claims Court granted the government’s motion to dismiss the
complaint. The court concluded that it lacked subject matter jurisdiction over Orlova’s
refund claims for 2001 and 2002 under 26 U.S.C. § 6511(a) because Orlova had not
filed either refund claim within three years from the time the return was filed or two
years from the time the tax was paid.
Orlova timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
We review the dismissal of a complaint for lack of subject matter jurisdiction de
novo. Albright v. United States, 10 F.3d 790, 793 (Fed. Cir. 1993). The Tucker Act, 28
U.S.C. § 1491(a)(1), sets forth the jurisdiction of the Claims Court to hear claims against
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the United States where the suit is “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 in cases not
sounding in tort.” Congress has further provided in 28 U.S.C. § 1346(a)(1) for
concurrent jurisdiction in the federal district courts and the Claims Court with respect to
“[a]ny civil action against the United States for the recovery of any internal-revenue tax
alleged to have been erroneously or illegally assessed or collected.” These provisions
are merely general jurisdictional provisions that, by themselves, do not waive sovereign
immunity to permit a suit against the government; a specific waiver is required. See
United States v. Testan, 424 U.S. 392, 398 (1976).
The specific waiver of sovereign immunity that permits suit for a tax refund is
contained in § 7422(a) of the Code. However, the statute also contains a limitation on
the maintenance of such a suit:
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.
26 U.S.C. § 7422(a) (emphases added). The provisions of law and regulations setting
forth the requirements for a “duly filed” refund claim include § 6511 of the Code and the
regulations thereunder. As the Supreme Court has explained,
A taxpayer seeking a refund of overpaid taxes ordinarily must file a timely
claim for a refund with the IRS under 26 U.S.C. § 6511. That section
contains two separate provisions for determining the timeliness of a refund
claim. It first establishes a filing deadline: The taxpayer must file a claim
for a refund “within 3 years from the time the return was filed or 2 years
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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(b)(1) (incorporating by reference § 6511(a)).
Comm’r v. Lundy, 516 U.S. 235, 239-40 (1996) (emphases in original) (footnote
omitted). Under this statutory scheme, the provision in issue in this case, § 6511(a), is
jurisdictional in nature, and a suit that fails to satisfy this provision must be dismissed for
lack of subject matter jurisdiction. See id. at 240 (noting that “the provisions governing
refund suits in United States District Court or the United States Court of Federal Claims
. . . make timely filing of a refund claim a jurisdictional prerequisite to bringing suit”).
Having laid out these jurisdictional limitations, we now turn to the parties’ arguments in
the instant matter.
Orlova argues that the Claims Court incorrectly applied the limitations periods
established by § 6511(a) to her claims. Orlova does not dispute that her claims were
untimely filed under the enacted limitations periods. She asserts instead that such
“arbitrary time limits for filing” are inapplicable to her case because the “IRS intentionally
and unfairly withheld information from [her] resulting in overpayment of [her] tax
liabilities for six years.” Appellant’s Br. 1. Orlova also argues that her tax refund claims
should not have been dismissed because the IRS failed to apply the “substantial
presence” test found in IRS Publication 519. Orlova contends that when she filed her
tax returns for the years 2001 and 2002 as a non-resident, the IRS failed to make a
determination of her proper resident status and inform her that she was eligible to file as
a resident of the United States. According to Orlova, this failure on the part of IRS
resulted in her overpayment of taxes for the listed years. Therefore, Orlova contends,
her untimely refund claim should have been allowed by the Claims Court. Further, she
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argues that § 6511(a) should not apply to her because she is a foreign national, and did
not know of the limitations period. In essence, she argues that the limitations period
should be equitably tolled in her case.
In response, the government argues that Orlova’s income tax returns for the
years 2001 and 2002 are simply time-barred under § 6511(a). The government
contends that Orlova’s refund claims filed in 2007 were untimely because she was
required to file any refund claim for 2001 by April 15, 2005, and any refund claim for
2002 by April 15, 2006. The government argues that the IRS has no legal duty to
discover overpayments and report them to taxpayers. The government contends that
the Claims Court properly concluded that none of the statutory exceptions to the
limitations period established by § 6511 were applicable to Orlova’s case and that
§ 6511 does not allow for equitable tolling.
We agree with the government that the Claims Court properly dismissed Orlova’s
complaint for lack of subject matter jurisdiction. We find no merit to Orlova’s argument
that her case should not have been dismissed because she is a foreign national.
Section 6511 provides no statutory exceptions to the limitations period based on the
nationality of the taxpayer. See § 6511(d), (h) (establishing various statutory exceptions
for certain types of untimely refund claims). We also reject Orlova’s repeated assertions
that the limitations period should be tolled because she was unaware of her resident
status and was not informed by the IRS that she was qualified to file as a U.S. resident.
As the Supreme Court has explained, Congress has not made the equitable tolling
doctrine available to tax refund claims. United States v. Brockamp, 519 U.S. 347, 354
(1997) (“[W]e conclude that Congress did not intend the ‘equitable tolling’ doctrine to
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apply to § 6511’s time limitations.”). Therefore, the mere failure of the IRS to inform
Orlova that she was entitled to file as a resident does not toll the time limitations that are
applicable to Orlova’s claims.
For the foregoing reasons, the Claims Court properly dismissed Orlova’s
complaint for lack of subject matter jurisdiction. Accordingly, we affirm.
COSTS
No costs.
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