Donna Ebeyer and Glenn Ebeyer v. United States

In the United States Court of Federal Claims
No. 12-181 T
(Filed January 10, 2014)
*********************
DONNA EBEYER AND GLENN *
EBEYER, *
* Tax; Refund Claim; 26 U.S.C.
Plaintiffs, * § 6511(b)(2)(A) (2012);
* Whether Plaintiffs Requested
v. * an Extension to File Their
* 2006 Federal Income Tax
THE UNITED STATES, * Return.
*
Defendant. *
*********************
Nathaniel L. Strand, New Orleans, LA, for plaintiffs.
Jacob E. Christensen, United States Department of Justice, with whom was
Kathryn Keneally, Assistant Attorney General, Washington, DC, for defendant.
David I. Pincus, United States Department of Justice, Washington, DC, of counsel.
_________________________
OPINION
_________________________
BUSH, Senior Judge.
Now pending before the court is defendant’s motion for summary judgment
pursuant to Rule 56 of the Rules of the United States Court of Federal Claims
(RCFC). Defendant’s motion has been fully briefed and is ripe for decision. Oral
argument was neither requested by the parties nor required by the court. Because
the court concludes that plaintiffs’ claim is time-barred under § 6511(b)(2)(A) of
the Internal Revenue Code, 26 U.S.C. § 6511(b)(2)(A) (2012), defendant’s motion
is granted.1
BACKGROUND 2
Donna and Glenn Ebeyer 3 filed their 2006 joint federal income tax return on
October 14, 2010. 4 Def.’s Proposed Findings of Uncontroverted Fact (DPFUF) ¶
1; Pls.’ Resp. to DPFUF ¶ 1. On their tax return, the Ebeyers reported an
overpayment of $3352 for the 2006 tax year, and requested a refund of that
amount. DPFUF ¶ 2; Pls.’ Resp. to DPFUF ¶ 2; Def.’s Mot. App. E, Ex. 1 at E5
(Lines 73 and 74a).5 The requested refund constituted the difference between the
1
/ Unless otherwise specified, all references to the Internal Revenue Code (I.R.C. or
Code) point to the 2012 version of Title 26 of the United States Code.
2
/ The facts recounted in this opinion are taken from plaintiffs’ complaint and the parties’
submissions in connection with defendant’s motion for summary judgment. Except where
otherwise noted, the facts recited here are undisputed.
3
/ Despite the apparent typographical error in the caption of plaintiffs’ complaint, it
appears from the record that the proper spelling of Mr. Ebeyer’s first name is “Glenn” rather than
“Glen.” See, e.g., Def.’s Mot. Apps. A-E. Therefore, the court adopts the former spelling, as
that is the spelling used by the parties throughout the record and their pleadings.
4
/ In their complaint, plaintiffs allege that they “filed a Form 1040 for the 2006 taxable
year on October 14, 2009.” Def.’s Mot. App. E, Ex. 1 ¶ 3. Mr. Ebeyer testified at his
deposition, however, that plaintiffs filed their 2006 return in October 2010, and that the
inconsistent allegation in plaintiffs’ complaint resulted from a typographical error. Id. App. C at
8-10. The evidence offered by the government corroborates Mr. Ebeyer’s testimony in that
regard. See, e.g., id. App. E, Ex. 1 at E5 (Form 1040 for the 2006 tax year signed by Mr. and
Mrs. Ebeyer on October 6, 2010), Ex. 2 (October 6, 2010 letter from Brandi R. Masson to the
Ebeyers enclosing “your 2006 federal income tax return” and asking the Ebeyers to “sign and
date” the return and mail it to the Internal Revenue Service), Ex. 3 (January 13, 2011 letter from
the Ebeyers to the Internal Revenue Service stating that “[o]n October 11, 2010 we forwarded
tax returns for 2006 and 2009”). Based on this evidence, plaintiffs concede that their refund
claim “was received by the [Internal Revenue Service] on October 14, 2010.” Pls.’ Resp. at 1;
see also Pls.’ Resp. to Def.’s Proposed Findings of Uncontroverted Fact (DPFUF) ¶ 1.
5
/ Defendant attaches to its motion a copy of plaintiffs’ complaint. See Def.’s Mot. App.
E, Ex. 1. The copy of plaintiffs’ complaint attached to defendant’s motion is paginated, whereas
plaintiffs’ complaint as originally filed is not. For the sake of clarity, when referring in this
(continued . . .)
2
Ebeyers’ tax liability of $8946 and their withholdings of $12,298, as reported on
their 2006 return. DPFUF ¶¶ 3-4; Pls.’ Resp. to DPFUF ¶¶ 3-4; Def.’s Mot. App.
A at A5, App. E, Ex. 1 at E5 (Lines 44 and 64).
On February 10, 2011, the Internal Revenue Service (IRS) disallowed the
Ebeyers’ refund claim as untimely because they filed their 2006 return, on which
they claimed a refund of $3352, “more than 3 years after the due date” for the
filing of their return. Def.’s Mot. App. E, Ex. 1 at E6. The Ebeyers filed an
administrative appeal of the IRS disallowance on March 9, 2011. See id. App. E,
Ex. 4. In their appeal, the Ebeyers stated that their 2006 return “was due by April
15, 2007,” but that they had waited to file their return (and their refund claim)
because they had lost their 2006 tax files in the aftermath of Hurricane Katrina:
Our 2006 tax return was due by April 15, 2007. In 2005
& 2006 after Hurricane Katrina, we extended housing
(our home) to family members (our son and parents) who
lost their homes in the storm. Consequently, the different
families’ belongings and important documents were
commingled in our home and eventually ended up stored
in one central location. This included our tax info for
2005 and 2006. Finally when all families went to their
own homes, some of our belongings and important files
went missing. We were not able to locate our tax info for
2006. At that time we felt as though they were lost and
there was nothing we could do. It was past the deadline
(April 15, 2007) to file and we were under the impression
that if we had not filed for an “extension” we were going
to lose our refund.
In late 2010 we spoke to an income tax preparer who
advised us that we could still file taxes for 2006 (that it
was not too late since we did not owe taxes but were
entitled to a refund). We had the 2006 return prepared
and then mailed it to IRS.
opinion to plaintiffs’ complaint, the court cites to the paginated copy of plaintiffs’ complaint
attached to defendant’s motion.
3
Id. App. E, Ex. 4 at E10-E11 (italics emphases added).
In subsequent correspondence to the IRS dated April 28, 2011 and June 16,
2011, the Ebeyers acknowledged that they had filed their refund claim “late” yet
asked the IRS to make an exception to the deadline “based on exceptional
circumstances.” Def.’s Mot. App. E, Ex. 5 at E12 (April 28, 2011 letter explaining
the Ebeyers’ “reasons for filing our refund late and why we are asking for the IRS
to make an exception to the deadline based on exceptional circumstances explained
in our March 9, 2011 appeal”), Ex. 6 (June 16, 2011 letter “pleading for the IRS to
make an expection [sic] to the deadline based on exceptional circumstances” and
stating that “[w]e are certain that . . . our reasons for filing late meet the criteria for
appeal and payment of our 2006 tax refund”).
In July 2011, the IRS Brookhaven Appeals Office upheld the denial of
plaintiffs’ refund claim as untimely. See Def.’s Mot. App. E, Ex. 1 at E7. In a
letter to the Ebeyers dated July 26, 2011, IRS Appeals Officer Grace Schmitz
concluded that “there is no basis to allow any part of your claim.” Id. The crux of
the controversy in this case originates from the following statement provided by
Ms. Schmitz, setting forth an explanation of her determination:
You had extended your time to file your return with form
[4868]. This would have protected the right to a refund
until 10/15/2010. The 2006 tax return did not have
federal postponements due to Katrina. Although your
actions toward [the] member[s] of your family were a
reasonable excuse for not filing timely, reasonable cause
cannot extend or change the limitations of time for filing
a claim set by law.
Id.
Plaintiffs filed this refund suit on March 19, 2012, seeking judgment for the
amount of the refund claimed on their 2006 return, plus fees and costs under I.R.C.
§ 7430. In their complaint, plaintiffs allege that they “had been granted an
automatic 6-month extension for the filing of [their 2006] return after filing a form
4868,” Def.’s Mot. App. E, Ex. 1 ¶ 3, and therefore they “had until October 15,
4
2010 to request a refund,” id. ¶ 7. Plaintiffs attach to their complaint a copy of Ms.
Schmitz’s July 26, 2011 letter stating that the Ebeyers “had extended your time to
file your return with form [4868].” Id. at E7. Plaintiffs rely upon that statement to
assert that the IRS “recognized” that the Ebeyers had been granted a six-month
extension in which to file their 2006 return. 6 Id. ¶ 7.
Defendant’s discovery efforts in this case, which included written discovery
as well as the depositions of Mr. and Mrs. Ebeyer, focused upon plaintiffs’
allegation that they requested and were granted a six-month extension of time to
file their 2006 return. These discovery efforts, however, yielded little specific
information regarding the Ebeyers’ alleged request for an extension. Although Mr.
and Mrs. Ebeyer provided interrogatory answers and deposition testimony stating,
in general terms, that Mr. Ebeyer prepared the extension request and submitted it to
the IRS before the April 2007 deadline for the filing of the Ebeyers’ 2006 return,
see Def.’s Mot. App. C at 18, 22-23, 25; id. App. D at 16-17; id. App. E, Ex. 8 at
E22 (Mrs. Ebeyer’s answer to Interrogatory No. 1 stating that “[m]y husband,
Glenn Ebeyer, prepared the extension form for the 2006 taxable year”), E23 (Mr.
Ebeyer’s answer to Interrogatory No. 1 stating that “there is no doubt in my mind
that I did prepare [the extension request] and did send it [to the IRS]”); id. App. E,
Ex. 15, they provided scant detail regarding their alleged request.
Most notably, the Ebeyers were unable to recall specific details regarding
how and when their alleged extension request was prepared and sent to the IRS.
See Pls.’ Resp. to DPFUF ¶¶ 12-14. Mr. Ebeyer testified that he “probably filed
[the extension request] electronically” but did not “accurately remember which
method I used.” Def.’s Mot. App. C at 18; see also id. App. C at 22 (“I cannot a
hundred percent say I did it via a letter or via a piece of mail or electronically. I
6
/ Plaintiffs also allege in their complaint that their 2006 return constituted an “informal
claim” for a refund, and that the IRS erred in supposedly disallowing plaintiffs’ refund claim on
the ground that the Ebeyers “did not file a specific refund request, such as through a Form 843.”
Def.’s Mot. App. E, Ex. 1 ¶¶ 7-8. However, plaintiffs abandon that particular contention in their
brief in response to defendant’s motion for summary judgment, stating that “[t]he original
complaint did not anticipate a dispute as to the extension or the deadline, since the IRS was
thought to have admitted and conceded these issues,” but rather “anticipated the government’s
argument that the Ebeyers never made a valid refund request by the deadline.” Pls.’ Resp. at 4
n.1. Because plaintiffs do not advance their “informal claim” argument in response to
defendant’s motion for summary judgment, the court need not consider it.
5
can speculate, but that would be about it.”); id. App. E, Ex. 8 at E23 (Mr. Ebeyer’s
answer to Interrogatory No. 1 stating that “I do not remember exactly how [the
extension request] was transmitted”); id. App. E, Ex. 15 at E51 (same).
Additionally, although Mr. Ebeyer testified that he submitted the extension request
to the IRS “[p]rior to April 15th, [2007,]” he could not recall a specific date or
even a range of dates. Def.’s Mot. App. C at 25; see also id. App. E, Ex. 15 at E51
(Mr. Ebeyer’s supplemental answer to Interrogatory No. 1 stating, “I don’t
remember exactly when [the extension request] was prepared or sent, but it was
sometime before April 15, 2007”). Mrs. Ebeyer was likewise unable to provide
specific details regarding when and how her husband submitted the alleged
extension request. See Def.’s Mot. App. D at 16-17; id. App. E, Ex. 8 at E22 (Mrs.
Ebeyer’s answer to Interrogatory No. 1 stating that “I do not remember exactly
how [the extension request] was transmitted, but I distinctly remember [Mr.
Ebeyer] going on the computer and printing it out”); id. App. E, Ex. 15 at E50
(Mrs. Ebeyer’s supplemental answer to Interrogatory No. 1 stating, “I don’t
remember exactly when it was prepared or sent, or exactly where it was
transmitted to”).
The Ebeyers also admitted that they could not produce a copy of their
alleged extension request, or, for that matter, any contemporaneous documentary
evidence of their having mailed or otherwise filed such a request. See Pls.’ Resp.
to DPFUF ¶ 10 (“agree[ing]” that “[p]laintiffs do not have a copy (signed or
unsigned) of the alleged application for an extension of time to file their 2006
income tax return”); Def.’s Mot. App. C at 17-18 (Mr. Ebeyer’s deposition
testimony that he “do[es] not have a physical copy” of the alleged extension
request and has “no physical proof” of having submitted the request); id. App. D at
10 (Mrs. Ebeyer’s deposition testimony that she “could not find any copies” of the
alleged extension request); id. App. E, Ex. 8 at E20 (plaintiffs’ responses to
defendant’s document requests stating that the Ebeyers “are unable to locate a copy
of the 6-month extension form that was filed” or “any . . . mail receipt or similar
item,” and “do not recall receiving any document sent by the IRS for the purpose
of ‘confirmation’ of the extension in 2007 and . . . are not able to locate such a
document”).
On April 26, 2013, after the close of discovery, the government filed a
motion to dismiss plaintiffs’ refund claim pursuant to RCFC 12(b)(1). In that
motion, the government argued that plaintiffs’ refund claim is barred by I.R.C. §
6
6511(b)(2)(A), and, consequently, plaintiffs are unable to establish this court’s
subject matter jurisdiction over their claim. On July 31, 2013, while the
government’s motion to dismiss was pending, the Federal Circuit issued a
precedential decision in which it stated that “the look-back provision [in §
6511(b)(2)(A)] is not jurisdictional in nature” and that a refund claim barred by §
6511(b)(2)(A) must be dismissed pursuant to RCFC 12(b)(6) for failure to state a
claim upon which relief could be granted. Boeri v. United States, 724 F.3d 1367,
1369 (Fed. Cir. 2013) (citation and internal quotation marks omitted). Following
Boeri, this court denied the government’s RCFC 12(b)(1) motion on August 7,
2013 but allowed the government an opportunity to advance its contentions based
on § 6511(b)(2)(A) by filing a motion for summary judgment under RCFC 56.
Defendant filed a motion for summary judgment on September 4, 2013. In
that motion, which has been fully briefed, the government advances the same
principal argument as it advanced in its previous motion to dismiss under RCFC
12(b)(1), i.e., that plaintiffs’ refund claim is barred by § 6511(b)(2)(A).
DISCUSSION
I. Standard of Review for RCFC 56 Motions for Summary Judgment
The availability of summary judgment helps a federal court “‘to secure the
just, speedy, and inexpensive determination of every action.’” Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). Summary judgment
is appropriate where there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law. RCFC 56(a); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is material if it would
affect the outcome of the suit. Anderson, 477 U.S. at 248. A dispute of material
fact is genuine if a reasonable trier of fact could return a verdict for the nonmoving
party. Id.; Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation omitted) (stating that there is no genuine issue of material fact
“[w]here the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party”).
The moving party bears the burden of showing that there is an absence of
any genuine issue of material fact, and the court must view the evidence in the
light most favorable to the nonmovant and draw all reasonable inferences in favor
7
of that party. Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed.
Cir. 1994) (citations omitted). “The moving party, however, need not produce
evidence showing the absence of a genuine issue of material fact . . . .” Id. (citing
Celotex, 477 U.S. at 325). Rather, “when the non-moving party bears the burden
of proof on an issue, the moving party can simply point out the absence of
evidence creating a disputed issue of material fact” and thereby shift the burden to
the nonmoving party to produce evidence showing that there is such a disputed
factual issue in the case. Simanski v. Sec’y of Health & Human Servs., 671 F.3d
1368, 1379 (Fed. Cir. 2012) (citing Celotex, 477 U.S. at 325, and Dairyland, 16
F.3d at 1202).
A party opposing a properly supported motion for summary judgment “must
set forth specific facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256. Mere allegations or denials, conclusory statements, or evidence
that is merely colorable or not significantly probative are not sufficient to preclude
summary judgment. Id. at 248-50, 256; see also Matsushita, 475 U.S. at 586
(“When the moving party has carried its burden under Rule 56[], its opponent must
do more than simply show that there is some metaphysical doubt as to the material
facts.”) (citations omitted); Barmag Barmer Maschinenfabrik AG v. Murata Mach.,
Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984) (“With respect to whether there is a
genuine issue, the court may not simply accept a party’s statement that a fact is
challenged.”) (citation omitted). “The party opposing the motion must point to an
evidentiary conflict created on the record by at least a counter statement of a fact or
facts set forth in detail in an affidavit by a knowledgeable affiant.” Barmag, 731
F.2d at 836. Summary judgment must be granted against a party who fails to make
a showing sufficient to establish the existence of an essential element to that
party’s case and on which that party bears the burden of proof at trial. Dairyland,
16 F.3d at 1202 (citing Celotex, 477 U.S. at 323).
II. Timeliness Requirements for Tax Refund Claims
I.R.C. § 6511 contains two separate timeliness requirements for tax refund
claims, both of which must be satisfied in order for a taxpayer to recover. First, §
6511 contains a filing deadline specifying that unless a “[c]laim for credit or refund
of an overpayment of any tax . . . [is] 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,” § 6511(a), “[n]o credit or refund [of an
8
overpayment] shall be allowed or made,” § 6511(b)(1). It is well-settled that
satisfaction of this filing deadline is a jurisdictional prerequisite to a tax refund suit
in the Court of Federal Claims. See, e.g., Sun Chem. Corp. v. United States, 698
F.2d 1203, 1206 (Fed. Cir. 1983) (citations omitted).
In this case, it is undisputed that plaintiffs filed their 2006 federal income tax
return on October 14, 2010, and on that return claimed an overpayment of $3352
for which plaintiffs requested a refund. See DPFUF ¶¶ 1-2; Pls.’ Resp. to DPFUF
¶¶ 1-2; Def.’s Mot. App. E, Ex. 1 at E5 (Line 74a). Because plaintiffs’ 2006 return
also constitutes a valid claim for refund of $3352, plaintiffs have satisfied the filing
deadline set forth in § 6511. See Musungayi v. United States, 86 Fed. Cl. 121, 124
(2009) (“Because an original income tax return that discloses the amount of
overpayment constitutes a claim for refund, a taxpayer who has filed such a tax
return has satisfied the three-year filing requirement of section 6511(a).” (citing
Treas. Reg. § 301.6402-3(a)(5) (2008))); Def.’s Mot. at 4 (“Plaintiffs’ 2006 tax
return, which they filed on October 14, 2010, and on which they claimed a refund
of $3,352, is considered to be a ‘claim for refund’ for such amount within the
meaning of § 6511. Therefore, because plaintiffs’ original return also constitutes
their refund claim, plaintiffs’ claim satisfies the 3-year filing deadline of §
6511(a).”) (citations omitted).
Unfortunately for plaintiffs, however, § 6511 contains another timeliness
requirement. Specifically, § 6511(b)(2), often described as a “look-back”
provision, limits a taxpayer’s available refund to the amount of tax paid during the
applicable “look-back” period. Under that provision, if a refund claim is filed
within three years from the time the return was filed, “the amount of the . . . refund
shall not exceed the portion of the tax paid within the period, immediately
preceding the filing of the claim, equal to 3 years plus the period of any extension
of time for filing the return.” Id. § 6511(b)(2)(A). If a claim is not filed within
three years from the time the return was filed, “the amount of the . . . refund shall
not exceed the portion of the tax paid during the 2 years immediately preceding the
filing of the claim.” Id. § 6511(b)(2)(B). If no tax has been paid within the
applicable look-back period, plus any applicable extensions,7 then the available
7
/ The Code permits the Secretary of the Treasury to grant a “reasonable extension” of up
to six months for the filing of a federal income tax return. See I.R.C. § 6081(a). Under the
version of the regulations in force when plaintiffs allegedly requested an extension, a taxpayer
(continued . . .)
9
refund is zero. See, e.g., Baral v. United States, 528 U.S. 431, 436 (2000) (holding
that “the ceiling on [the taxpayer’s] requested credit of $1,175 is zero” under §
6511(b)(2) because no tax was paid during the applicable look-back period); Doyle
v. United States, 88 Fed. Cl. 314, 321-22 (2009) (same); Minehan v. United States,
75 Fed. Cl. 249, 254 n.7 (2007) (“Because Ms. Minehan hopes to recoup funds
which were paid outside the period of time for which recovery is allowable under
the IRC, her refund claim undoubtedly fails.”). Unlike the filing deadline, the
look-back provision in § 6511(b)(2) is not a jurisdictional prerequisite but, rather, a
“substantive limitation[] on the amount of recovery.” United States v. Brockamp,
519 U.S. 347, 352 (1997); see also Boeri, 724 F.3d at 1369 (citation omitted).
In its motion for summary judgment, the government contends that
plaintiffs’ refund claim is barred by § 6511(b)(2)(A) because “plaintiffs paid no tax
within the 3-year period directly preceding the filing of their refund claim on
October 14, 2010” and because plaintiffs neither requested nor were granted an
extension for filing their 2006 return. Def.’s Mot. at 3. Plaintiffs do not dispute
that their 2006 federal income tax was paid on April 15, 2007 and therefore they
paid no tax during the three years preceding the filing of their refund claim on
October 14, 2010. 8 See Pls.’ Resp. to DPFUF ¶ 5. Plaintiffs nevertheless argue
that their refund claim is not barred by § 6511(b)(2)(A) because they assert that
they requested and were granted a six-month extension for filing their 2006 return,
which correspondingly extended the look-back period under § 6511(b)(2)(A) by
six months to April 14, 2007. See Pls.’ Resp. at 1-6; Def.’s Mot. App. E, Ex. 1 ¶¶
3, 7.
desiring an automatic six-month extension of time for filing a return must generally submit an
application for such an extension on or before the due date for filing the return. See Treas. Reg.
§ 1.6081-4T(a)-(b) (2006) (temporary regulation promulgated on November 7, 2005, and
applicable to applications for automatic six-month extensions filed after December 31, 2005 and
before July 2, 2008).
8
/ As noted, plaintiffs reported withholdings in the amount of $12,298 for tax year 2006.
Def.’s Mot. App. E, Ex. 1 at E5 (Line 64). Plaintiffs are deemed to have paid this amount on
April 15, 2007, i.e., “the 15th day of the fourth month following the close of [plaintiffs’ 2006]
taxable year.” I.R.C. § 6513(b)(1) (“Any tax actually deducted and withheld at the source during
any calendar year . . . shall, in respect of the recipient of the income, be deemed to have been
paid by him on the 15th day of the fourth month following the close of his taxable year . . . .”);
Baral, 528 U.S. at 434-36.
10
The government concedes that if the IRS had granted plaintiffs a six-month
extension, as plaintiffs allege, then § 6511(b)(2)(A) “would not bar plaintiffs’
refund claim.” Def.’s Mot. at 5. Defendant argues, however, that plaintiffs have
failed to identify sufficient evidence to demonstrate a genuine issue of fact
regarding whether they requested such an extension. See id. at 5-14. Therefore,
the parties’ dispute centers on the issue of whether plaintiffs requested and were
granted a six-month extension of the statutory deadline to file their 2006 return.
III. Analysis
A. Whether Official IRS Records Demonstrate that Plaintiffs Did
Not Request an Extension
In support of its motion for summary judgment, defendant relies primarily
upon official IRS records that defendant contends “establish that plaintiffs never
requested, and at all events were never granted, any extension of time to file their
2006 return.” Def.’s Mot. at 5. Such records, which defendant offers through the
declaration of Roman G. Hernandez, an IRS Court Witness Coordinator, see Def.’s
Mot. App. A, include “physical records maintained by the [IRS] with respect to the
Ebeyers’ 2006 income tax year,” id. ¶ 5, as well as a “transcript of account
electronically maintained by the [IRS] for the Ebeyers’ 2006 tax year,” id. ¶ 3.
In his declaration, Mr. Hernandez states that “[i]t is the regular practice of
the [IRS], when it receives a taxpayer’s timely request for an extension of time to
file [a return] (whether filed electronically or in paper form), to record the request
in the account electronically maintained for that taxpayer for the relevant tax year.”
Def.’s Mot. App. A ¶ 4. Therefore, had plaintiffs requested an extension of time to
file their 2006 return, that request “would have been entered into [plaintiffs’]
account and would be reflected on the . . . transcript of account” attached to Mr.
Hernandez’s declaration. Id. Plaintiffs do not dispute Mr. Hernandez’s declaration
in this regard. Pls.’ Resp. to DPFUF ¶ 7 (“agree[ing]” that “[i]t is the regular
practice of the IRS, when it receives a taxpayer’s timely application for an
extension of time to file [a return] (whether filed electronically or in paper form),
to record the request in the account electronically maintained for that taxpayer for
the relevant tax year”). The “transcript of account” pertaining to plaintiffs’ 2006
return – otherwise known as a Form 4340, or “Certification of Assessments,
11
Payments, and Other Specified Matters” – is attached as an exhibit to Mr.
Hernandez’s declaration along with a signed “Certificate of Official Record”
bearing the seal of the Department of the Treasury, see Def.’s Mot. App. A at A4,
and indicates that the IRS has no record of the Ebeyers ever requesting an
extension of time to file their 2006 return, see id. at A5.
Mr. Hernandez also states that “[i]t is the regular practice of the [IRS] to
send paper-filed requests for an extension of time to file . . . to a centralized files
location where they can later be retrieved, if necessary.” Def.’s Mot. App. A ¶ 5.
According to Mr. Hernandez, “[t]he physical records maintained by the [IRS] with
respect to the Ebeyers’ 2006 income tax year also do not include a request for an
extension of time to file.” Id. ¶ 5.
Relying upon Mr. Hernandez’s declaration and the attached Form 4340, the
government asserts that “[t]he IRS has no record of ever receiving, processing, or
granting an application for an extension of time for plaintiffs to file their 2006
income tax return.” Def.’s Mot. at 6. Defendant further argues that “IRS records
are presumed to be true, accurate, and correct,” id. (citing Harris v. United States,
44 Fed. Cl. 678, 682 (1999), aff’d, 232 F.3d 912 (Fed. Cir. 2000) (table), and Davis
v. United States, 43 Fed. Cl. 92, 94 (1999), aff’d, 230 F.3d 1383 (Fed. Cir. 2000)
(table)), and that “[p]laintiffs can rebut this presumption only ‘by presenting
reliable evidence to the contrary,’” id. (quoting Davis, 43 Fed. Cl. at 94). Thus, the
government contends that IRS records establish that the Ebeyers never requested
and were never granted any extension of time to file their 2006 tax return.
The court agrees with defendant that Mr. Hernandez’s declaration and the
attached Form 4340 are sufficient to presumptively demonstrate the absence of a
genuine issue of fact regarding whether plaintiffs requested an extension of time to
file their 2006 return. Such official records, as defendant correctly notes, are
“presumed to be true, accurate, and correct.” Harris, 44 Fed. Cl. at 682 (citing Sun
Oil Co. v. United States, 572 F.2d 786, 805 (Ct. Cl. 1978); see Brach v. United
States, 98 Fed. Cl. 60, 66 n.13 (2011) (noting that “IRS administrative files are
generally presumed to be true, accurate, and correct”) (citations and internal
quotation marks omitted), aff’d on other grounds, 443 F. App’x 543 (Fed. Cir.
2011); Davis, 43 Fed. Cl. at 94 (noting that an “IRS Certification of Lack of
Record and a declaration from an IRS employee,” which indicated that the IRS did
not receive plaintiff’s refund claim, “are presumed true, accurate, and correct”
12
(citing H.S. & H. Ltd. of Columbia, Ill. v. United States, 18 Cl. Ct. 241, 246
(1989))); Dallin ex rel. Estate of Young v. United States, 62 Fed. Cl. 589, 600
(2004) (“It is well established that a certified copy of the taxpayer’s Form 4340
triggers the presumption of correctness in favor of the government . . . .”) (citations
and internal quotation marks omitted).
Plaintiffs do not challenge the presumptive accuracy of official IRS records
demonstrating that the IRS never received a request for an extension of time for the
Ebeyers to file their 2006 return. Instead, in an attempt to cast doubt on the
reliability of these records, plaintiffs cite to decisions of various courts supposedly
documenting “IRS malfeasances” in other cases, including instances in which the
IRS lost or misplaced documents filed by taxpayers. Pls.’ Resp. at 3 (citing cases).
Based on these decisions in other cases, plaintiffs contend that the “[t]he IRS is not
a trustworthy organization” and, therefore, may have lost or misplaced the
Ebeyers’ alleged request for an extension. Id. Plaintiffs also suggest, without
record support, that the IRS “cook[ed] [its] records for purposes of this litigation.”
Id.; see also id. at 4 (“The Ebeyers believe that the IRS made ‘updates’ to their
records after they were sued mentioning the absence of the extension.”).
Plaintiffs’ unsubstantiated assertions that the IRS altered its records so as to
delete reference to plaintiffs’ alleged request for extension are plainly insufficient
to raise a genuine issue of fact regarding the accuracy of IRS records introduced by
the government. As noted, to defeat a properly supported motion for summary
judgment, the non-moving party must produce sufficient evidence to allow a
reasonable finder of fact to rule in its favor. Anderson, 477 U.S. at 248, 256. Mere
denials, conclusory statements, or evidence that is merely colorable or not
significantly probative are not sufficient to preclude summary judgment. Id. at
248-50, 256; see also Matsushita, 475 U.S. at 586; Barmag, 731 F.2d at 835-36.
Under this binding authority, plaintiffs’ conclusory assertions of wrongdoing on
the part of the IRS, devoid of any factual support, cannot preclude summary
judgment.
Nor are plaintiffs’ references to supposed “IRS malfeasances” in other cases
sufficient to raise a genuine issue of fact regarding the accuracy of IRS records
proffered by the government in this case. Plaintiffs’ speculation that the IRS may
have lost or misplaced the Ebeyers’ alleged request for an extension because the
IRS has done so in other cases raises nothing more than a “theoretical possibility or
13
‘metaphysical doubt,’ which is insufficient to create a genuine issue of material
fact.” Jansen v. Rexall Sundown, Inc., 342 F.3d 1329, 1334 (Fed. Cir. 2003)
(quoting Anderson, 477 U.S. at 261); see also Matsushita, 475 U.S. at 586 (“When
the moving party has carried its burden under Rule 56[], its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.”)
(citations omitted).
Plaintiffs also attack the government’s records on the ground that these
records contain hearsay not falling within a recognized exception to the hearsay
rule. See Pls.’ Resp. at 7-8; Pls.’ Resp. to DPFUF ¶¶ 6, 8-9. Specifically, plaintiffs
argue that these records are “inconsisten[t]” with Ms. Schmitz’s July 26, 2011
letter and, therefore, “the circumstances show a lack of trustworthiness” precluding
the application of the public records exception under Rule 803(8) of the Federal
Rules of Evidence (FRE):
Mr. and Mrs. Ebeyer are also of the position that the
government’s “records” are inadmissible under the
hearsay rule. Normally, out-of-court statements are
inadmissible when offered for the truth of the matter
asserted. FRE 802.
While the federal rules of evidence carve out an
exception to this for public records, this exception does
not apply when the circumstances show a lack of
trustworthiness. See FRE 803(8). Mr. and Mrs. Ebeyer
feel that these circumstances do demonstrate such a lack
of trustworthiness. The government sent them a formal
Notice of Disallowance stating that they had been
granted an extension, and then, after they hired an
attorney and pursued this in court, the government denied
ever granting an extension. This inconsistency calls into
question the trustworthiness of the government’s alleged
records.
Pls.’ Resp. at 7. Additionally, plaintiffs contend that the “business records”
exception under FRE 803(6) is similarly inapplicable “because this rule also may
not be used when the circumstances indicate a lack of trustworthiness.” Id. at 8.
14
Finally, plaintiffs assert that Mr. Hernandez’s declaration is “not admissible under
FRE 803(10) relating to absence of records, because there is no regular or set
policy of the government to keep extensions for any particular length of time.” Id.;
see also id. at 3 (“[T]he IRS does not have any clear policy on how long it keeps
extensions and may destroy records of them . . . in as little as a year.”).
The court rejects plaintiffs’ hearsay arguments as meritless for several
reasons. First, this court and others have routinely considered Forms 4340 under
the public records exception to the hearsay rule. See, e.g., Int’l Fid. Ins. Co. v.
United States, 27 Fed. Cl. 107, 111 (1992) (noting that “[o]ther courts have held
that an IRS Form 4340 is admissible evidence that creates a presumption that the
IRS assessment is valid,” and holding that a Form 4340 submitted by the
government was “admissible evidence in support of the defendant’s motion for
summary judgment” (citing Hughes v. United States, 953 F.2d 531, 539-40 (9th
Cir. 1992))). Indeed, as noted supra, this court has routinely considered such
documents to presumptively establish the accuracy of the matters to which they
attest.
Second, plaintiffs have not shown any circumstances indicating a lack of
trustworthiness requiring exclusion of the government’s records. Although
plaintiffs contend that the government, as a party to this litigation, “has every
incentive to lie or skew records,” Pls.’ Resp. at 7, plaintiffs have not offered any
evidence that even remotely suggests that the government altered its records to
omit reference to plaintiffs’ alleged request for an extension. Moreover, the court
is not persuaded that a mere “inconsistency” between the Form 4340 attached to
Mr. Hernandez’s declaration and one sentence within Ms. Schmitz’s July 26, 2011
letter disqualifies the Form 4340 as a public record under FRE 803(8). Plaintiffs
offer no authority, and the court is not aware of any, requiring the exclusion on
hearsay grounds of a certified government record based on mere “inconsistency”
between the certified record and another document.
Third, plaintiffs cite no authority requiring exclusion of Mr. Hernandez’s
declaration in which he stated that he reviewed the records maintained by the IRS
with respect to the Ebeyers’ 2006 tax return and found no reference therein to any
request for an extension. Plaintiffs cite to a section of an “Internal Revenue
Manual” purportedly setting forth the IRS’s records and information management
policies, and argue based on that document that “the IRS does not have any clear
policy on how long it keeps extensions and may destroy records of them . . . in as
15
little as a year.” Pls.’ Resp. at 3; see also id. at 8. Yet plaintiffs fail to demonstrate
how that document rebuts Mr. Hernandez’s testimony that “[i]t is the regular
practice of the [IRS] . . . to record [a taxpayer’s] request [for an extension] in the
account electronically maintained for that taxpayer for the relevant tax year” and to
“send paper-filed requests for an extension . . . to a centralized files location where
they can later be retrieved.” Def.’s Mot. App. A ¶ 5.
Accordingly, the court concludes that Mr. Hernandez’s declaration and the
attached Form 4340 are sufficient to demonstrate the absence of a genuine issue of
fact regarding whether plaintiffs requested a six-month extension of time to file
their 2006 return. Because plaintiffs bear the burden at trial of establishing
entitlement to their claimed refund, see, e.g., Bubble Room, Inc. v. United States,
159 F.3d 553, 561 (Fed. Cir. 1998) (“[T]he taxpayer has the burden of establishing
entitlement to the specific refund amount claimed.” (citing United States v. Janis,
428 U.S. 433, 440 (1976))), to survive summary judgment plaintiffs must come
forward with sufficient evidence to allow a reasonable trier of fact to conclude that
the Ebeyers requested a six-month extension, see Anderson, 477 U.S. at 248-50,
256. The court now turns to an analysis of whether plaintiffs have identified
sufficient evidence to meet that burden.
B. Whether Plaintiffs’ Proffered Rebuttal Evidence Is Sufficient to
Raise a Genuine Issue of Material Fact
The government contends that “plaintiffs have no competent evidence” to
support their allegation that they submitted a request for an extension of time to
file their 2006 return and therefore plaintiffs are unable to demonstrate a genuine
issue of fact as to their alleged extension. Def.’s Mot. at 7; see also id. at 11-12.
Plaintiffs, in response, argue that Ms. Schmitz’s July 26, 2011 letter, considered
together with plaintiffs’ testimony that they submitted a request for an extension, is
sufficient to preclude summary judgment. See Pls.’ Resp. at 5-7.
As noted, summary judgment must be granted against a party who fails to
make a showing sufficient to establish the existence of an essential element to that
party’s case and on which that party bears the burden of proof at trial. Dairyland,
16 F.3d at 1202 (citing Celotex, 477 U.S. at 323). Once official IRS records are
introduced by the government, the taxpayer bears the burden of showing that the
information presented therein is incorrect. See, e.g., Dallin, 62 Fed. Cl. at 599-600
(citations omitted). Having considered all of the parties’ arguments, the court
16
agrees with defendant that plaintiffs have not produced sufficient evidence to
demonstrate a genuine issue of fact regarding the accuracy of the IRS records
reflecting that plaintiffs never requested an extension of time to file their 2006
income tax return.
1. Appeals Officer Schmitz’s July 26, 2011 Letter
Plaintiffs do not dispute that they have no contemporaneous documentary
evidence of their having mailed or otherwise filed a request for an extension. See
Pls.’ Resp. to DPFUF ¶ 10; Def.’s Mot. App. C at 17-18; id. App. D at 10; id. App.
E, Ex. 8 at E20. Plaintiffs nevertheless assert that Ms. Schmitz, in her July 26,
2011 letter upholding the denial of plaintiffs’ refund claim as untimely, “quite
clearly stated that Mr. and Mrs. Ebeyer had been granted such an extension.” Pls.’
Resp. at 3; see also id. at 5 (“The IRS sent a Notice of Disallowance to Mr. and
Mrs. Ebeyer dated July 26, 2011, clearly stating that the Ebeyers had filed for and
had been [granted] such a six-month extension for the year 2006.”); Def.’s Mot.
App. C at 11, 14-17; id. App. D at 17-18, 24-25. Plaintiffs rely specifically upon
Ms. Schmitz’s statement, in her July 26, 2011 letter to plaintiffs, that “[y]ou [i.e.,
plaintiffs] had extended your time to file your return with form [4868].” Def.’s
Mot. App. E, Ex. 1 at E7.
In response, the government argues that Ms. Schmitz’s July 26, 2011 letter
contains a typographical error insofar as it states that plaintiffs “had extended”
their filing deadline for their 2006 return. See Def.’s Mot. at 9-10; Def.’s Reply at
1-3. Defendant contends that the referenced sentence simply omitted the word
“not” and that Ms. Schmitz meant to inform plaintiffs that they “had not extended”
their filing deadline. See Def.’s Mot. at 9 (citing Def.’s Mot. App. B ¶ 6). In
support of this contention, defendant offers Ms. Schmitz’s declaration in which she
explains that
[t]he July 26, 2011[] letter . . . mistakenly states that
“You had extended your time to file your return with
form [4868].” The word “not” was inadvertently omitted
from that sentence, which should have read “You had not
extended your time to file your return with form [4868].”
In fact, the Ebeyers did not file a request for an extension
for 2006, and the letter’s erroneous statement that they
17
did conflicts with the conclusion in the same paragraph
that they did not satisfy the “limitations of time for filing
a claim set by law,” which was the basis for denying their
claim.
Def.’s Mot. App. B ¶ 6. Defendant also argues that “[o]ther documents related to
plaintiffs’ administrative appeal, which were prepared by Ms. Schmitz prior to the
July 26, 2011[] letter, confirm Ms. Schmitz’s understanding at the time that
plaintiffs had not filed an application for an extension.” Def.’s Mot. at 9.
Specifically, defendant cites to a “Case Activity Record” containing Ms. Schmitz’s
notes taken while working on the Ebeyers’ administrative appeal, see id. App. B,
Ex. A, and an “Appeals Transmittal and Case Memo” prepared by Ms. Schmitz on
July 25, 2011, see id. App. B, Ex. B. The “Case Activity Record” contains two
entries, made by Ms. Schmitz on July 20 and July 21, 2011, indicating that
plaintiffs had not filed a request for an extension.9 See id. App. B, Ex. A. In
addition, the “Case Activity Record” contains an entry made by Ms. Schmitz on
July 25, 2011 which memorialized Ms. Schmitz’s “recommend[ation] that this
claim be denied due to late filing.” Id. Likewise, the “Appeals Transmittal and
Case Memo” prepared by Ms. Schmitz on July 25, 2011 recommended that
plaintiffs’ refund claim be denied because they “did not file an extension for 2006”
and “d[id] not provide a valid reason for the delay in filing their 2006 return.” Id.
App. B, Ex. B at B9.
a. Inadmissible Hearsay
Plaintiffs offer no evidence rebutting Ms. Schmitz’s declaration and
supporting documents. Instead, although it is not entirely clear from plaintiffs’
response, plaintiffs appear to object to the documents attached to Ms. Schmitz’s
declaration on the ground that these documents constitute inadmissible hearsay.
See Pls.’ Resp. at 7-8; Pls.’ Resp. to DPFUF ¶¶ 18, 21. Plaintiffs also object to Ms.
Schmitz’s declaration itself on the ground that it “appears to be dated after this
9
/ Plaintiffs offer no objection to defendant’s proposed finding of uncontroverted fact
stating that “[t]he Case Activity Record for plaintiffs’ administrative appeal contains two entries
made by Appeals Officer Grace Schmitz on July 20, 2011, and July 21, 2011, noting that
plaintiffs had not filed for an extension of time to file their 2006 income tax return.” See Pls.’
Resp. to DPFUF ¶ 20.
18
action was filed – [i.e.,] it contains the marking ‘(4/20/2012)’ in the corner.” Pls.’
Resp. at 4; Pls.’ Resp. to DPFUF ¶ 18. The court finds these arguments to be
unpersuasive. The “Case Activity Record” and “Appeals Transmittal and Case
Memo” attached to Ms. Schmitz’s declaration were themselves prepared prior to
the filing of this case. Furthermore, these documents are admissible as business
records under FRE 803(6) based upon Ms. Schmitz’s assertion, in her declaration,
that she prepared these records based upon her personal observations, and did so in
her official capacity and in the ordinary course of business. See Def.’s Mot. App.
B ¶¶ 3-4. Plaintiffs cite no authority prohibiting the court from considering
declarations in support of a motion for summary judgment merely because such
declarations were created after the initiation of litigation. To the contrary, as
defendant correctly notes, such declarations are expressly authorized by RCFC
56(c), which identifies “affidavits or declarations” as evidence that may be used to
support or oppose a motion for summary judgment. See Def.’s Reply at 5-6.
b. Equitable Estoppel
Plaintiffs also argue that “the government is barred from denying the
existence of [plaintiffs’ alleged] extension under the doctrine of estoppel” because
the Ebeyers relied upon Ms. Schmitz’s July 26, 2011 letter to their detriment. Pls.’
Resp. at 8. This argument, too, is meritless.
Equitable estoppel “is a judicial remedy by which a party may be precluded,
by its own acts or omissions, from asserting a right to which it otherwise would
have been entitled.” Carter v. United States, 98 Fed. Cl. 632, 638 (2011) (citation
and internal quotation marks omitted). The elements of equitable estoppel are: (1)
the party to be estopped must know the facts; (2) the party to be estopped must
intend, or act in a manner that the other party has reason to believe it intends, for
its conduct to be acted on; (3) the party asserting estoppel must be ignorant of the
true facts; and (4) the party asserting estoppel must rely on the other party’s
conduct to its injury. Am. Airlines, Inc. v. United States, 77 Fed. Cl. 672, 679
(2007) (citing A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020,
1041 (Fed. Cir. 1992), and Boeing Co. v. United States, 75 Fed. Cl. 34, 48 (2007)),
aff’d, 551 F.3d 1294 (Fed. Cir. 2008).
As an initial matter, plaintiffs’ estoppel theory is foreclosed by binding
precedent holding that “actions of regulatory authorities cannot either extend the
19
statute of limitations under [§] 6511 by equitable tolling or create an estoppel
against the government.” Computervision Corp. v. United States, 445 F.3d 1355,
1368 (Fed. Cir. 2006) (citing Brockamp, 519 U.S. at 352, and Office of Pers.
Mgmt. v. Richmond, 496 U.S. 414, 434 (1990)); see also Manor Care, Inc. v.
United States, 630 F.3d 1377, 1385 (Fed. Cir. 2011) (“The general rule is that
estoppel will not lie against the government because of actions by government
agents. As a general matter, tax law requires strict adherence to the Code as
written.”) (citation omitted).
Although the United States Supreme Court “has declined to adopt a broad
rule that equitable estoppel is never available against the government,” Frazer v.
United States, 288 F.3d 1347, 1352-53 (Fed. Cir. 2002) (citing Richmond, 496 U.S.
at 423-24), the Court has unequivocally stated that equitable estoppel will not lie
against the United States for “claim[s] for the payment of money from the Public
Treasury contrary to a statutory appropriation.” Richmond, 496 U.S. at 424;
accord Burnside-Ott Aviation Training Ctr., Inc. v. United States, 985 F.2d 1574,
1581 (Fed. Cir. 1993) (citing Richmond, 496 U.S. at 424). To read equitable
exceptions into § 6511 to excuse plaintiffs’ otherwise untimely tax refund claim
would violate the rule announced in Richmond and its progeny. This conclusion
finds support in the Supreme Court’s decision in Brockamp, in which the Court
noted that § 6511 “sets forth its limitations in a highly detailed technical manner,
that, linguistically speaking, cannot easily be read as containing implicit
exceptions,” 519 U.S. at 350, and also “sets forth explicit exceptions to its basic
time limits” which do not include equitable exceptions, id. at 351. In declining to
apply the analogous doctrine of equitable tolling to the timeliness requirements of
§ 6511, the Supreme Court in Brockamp concluded that “[§] 6511’s detail, its
technical language, the iteration of the limitations in both procedural and
substantive forms, and the explicit listing of exceptions, taken together, indicate to
us that Congress did not intend courts to read other unmentioned, open-ended,
‘equitable’ exceptions into the statute that it wrote.” Id. at 352. The Court further
stated that “[t]ax law, after all, is not normally characterized by case-specific
exceptions reflecting individualized equities.” Id. These authorities preclude the
application of equitable estoppel to resuscitate plaintiffs’ otherwise time-barred
refund claim.
The court notes that the government has presented arguments in support of
its contention that, even if equitable estoppel were permitted in tax refund cases,
20
plaintiffs have failed to satisfy the elements of equitable estoppel in this instance.
See Def.’s Reply at 7-9. Specifically, defendant claims that “plaintiffs cannot
under any circumstance establish the element of detrimental reliance.” Id. at 8.
Because the law is clear that equitable estoppel will not lie against the government
for tax refund claims otherwise barred by § 6511, an extensive examination of
defendant’s alternative arguments is not necessary. Cf. RHI Holdings, Inc. v.
United States, 142 F.3d 1459, 1463 (Fed. Cir. 1998) (stating that “since there
clearly is no equitable exception in [the statute of limitations set forth in I.R.C. §
6532], it is not necessary to decide if equitable estoppel would be enforced against
the United States if an equitable exception were found in a tax refund statute of
limitations”).
Defendant is correct to point out, however, that “if equitable estoppel is to
apply against the government, then ‘some form of affirmative misconduct must be
shown in addition to the traditional requirements of estoppel.’” Def.’s Reply at 8
(quoting Zacharin v. United States, 213 F.3d 1366, 1371 (Fed. Cir. 2000)); see also
United States v. Ford Motor Co., 463 F.3d 1267, 1279 (Fed. Cir. 2006)
(“[E]stoppel is available against government actors only in cases involving
‘affirmative misconduct.’” (quoting Rumsfeld v. United Techs. Corp., 315 F.3d
1361, 1377 (Fed. Cir. 2003), and Henry v. United States, 870 F.2d 634, 637 (Fed.
Cir. 1989))). Plaintiffs in this case have produced no evidence of such affirmative
misconduct on the part of the IRS or its employees.
Nor have plaintiffs produced any evidence of detrimental reliance on Ms.
Schmitz’s July 26, 2011 letter. As the government convincingly argues in its reply
brief, by July 26, 2011 the look-back period under § 6511(b)(2)(A) had already
expired, regardless of whether plaintiffs had requested or been granted a six-month
extension to file their 2006 return. See Def.’s Reply at 8. Therefore, Ms.
Schmitz’s letter could not possibly have induced any action by plaintiffs that could
have had any effect on the timeliness of their refund claim under § 6511(b)(2)(A),
and plaintiffs’ estoppel claim fails as a matter of law for this additional reason. See
Heckler v. Cmty. Health Servs., 467 U.S. 51, 61 (1984) (“[H]owever heavy the
burden might be when an estoppel is asserted against the Government, the private
party surely cannot prevail without at least demonstrating that the traditional
elements of an estoppel are present.”).
21
2. Plaintiffs’ Uncorroborated Testimony
Finally, without any documentary evidence supporting their contention that
they requested and were granted an extension to file their 2006 return, plaintiffs are
left with nothing but their testimony, in answers to interrogatories and in
depositions, that Mr. Ebeyer prepared and submitted a request for an extension at
some point before April 15, 2007. This testimony is not only uncorroborated but is
also contradicted by the documentary evidence presented by defendant. See Def.’s
Mot. at 8-9. Specifically, as noted, the Ebeyers stated in their administrative
appeal that their 2006 return “was due by April 15, 2007” and they “were under the
impression that if we had not filed for an ‘extension’ we were going to lose our
refund,” but that they had waited until October 2010 to file their 2006 return
because they lost their 2006 tax files in the aftermath of Hurricane Katrina. Def.’s
Mot. App. E, Ex. 4 at E10-E11. Then, in subsequent correspondence to the IRS
dated April 28, 2011 and June 16, 2011, the Ebeyers acknowledged that they had
filed their refund claim “late” yet asked the IRS to make an exception to the
deadline “based on exceptional circumstances.” Id. App. E, Exs. 5-6.
The government, citing several decisions of this court and its predecessor,
argues that plaintiffs’ uncorroborated testimony is “inadequate at all events to
prove proper filing [of a request for an extension] with the IRS” and is also
“insufficient to rebut the presumption of correctness associated with IRS records.”
Def.’s Mot. at 11-12 (citing, e.g., Doyle, 88 Fed. Cl. at 320 (“[A] taxpayer’s own
uncorroborated testimony to show timely mailing is not enough to establish a
presumption of delivery under any view of the law.”) (citation omitted), Davis, 43
Fed. Cl. at 94-95 (holding that plaintiff’s uncorroborated testimony that he timely
mailed his refund claim to the IRS was insufficient to prove timely filing and to
rebut a presumptively accurate “IRS Certification of Lack of Record” and an
accompanying declaration from an IRS employee), and McIlvaine v. United States,
23 Cl. Ct. 439, 442-43 (1991) (holding that plaintiffs’ uncorroborated testimony
that they timely mailed their tax return to the IRS on September 4, 1982 was
insufficient to rebut IRS records showing receipt of plaintiffs’ return on January 6,
1986, and failed to raise a genuine issue of material fact regarding the date on
which plaintiffs filed their return)). The court finds these authorities to be
persuasive, and agrees that plaintiffs’ self-serving and conclusory assertions are
insufficient to demonstrate the existence of a genuine issue of material fact on the
question of whether plaintiffs requested an extension of time to file their 2006
22
return, particularly in light of the fact that plaintiffs’ own written statements
contradict such assertions. See Anderson, 477 U.S. at 248-50, 256; Matsushita,
475 U.S. at 586; Barmag, 731 F.2d at 835-36.
CONCLUSION
Plaintiffs’ refund claim is barred by § 6511(b)(2)(A) unless plaintiffs
requested and were granted a six-month extension of the statutory deadline to file
their 2006 return. Because plaintiffs have failed to present sufficient evidence for
a reasonable trier of fact to find that plaintiffs requested such an extension, and
because plaintiffs have failed to rebut the presumption of correctness afforded IRS
records contradicting plaintiffs’ assertions in that regard, the government is entitled
to summary judgment with respect to plaintiffs’ refund claim. Accordingly, it is
hereby ORDERED that
(1) Defendant’s Motion for Summary Judgment, filed September 4, 2013,
is GRANTED;
(2) The Clerk’s Office is directed to ENTER final judgment in favor of
defendant DISMISSING the complaint with prejudice; and
(3) Each party shall bear its own costs.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
23