Cooper v. United States

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
)
LONNIE COOPER, )
)
Plaintiff, )
) No. 19-1356T
v. ) (Judge Davis)
)
THE UNITED STATES, ) Filed: May 9, 2023
)
Defendant. )
)
OPINION AND ORDER
On September 5, 2019, Plaintiff Lonnie Cooper filed this action for refund of a filing
penalty assessed against him due to the late filing of his 2014 tax return. Before the Court is the
Government’s Motion to Dismiss under Rule 12(b)(1) of the Rules of the United States Court of
Federal Claims (“RCFC”) for lack of subject-matter jurisdiction. For the reasons discussed below,
the Court has jurisdiction over Plaintiff’s Complaint. Additionally, the Government has not
demonstrated in the alternative that the Complaint fails to state a claim. Accordingly, the
Government’s Motion to Dismiss is DENIED.
I. BACKGROUND
A. Factual History
Mr. Cooper seeks to recover a $95,117.50 late-filing penalty assessed in connection with
his 2014 tax return. Pl.’s Compl. ¶¶ 1, 27–29, ECF No. 1. According to the Complaint, Mr.
Cooper’s Certified Public Accountant (“CPA”) timely requested on Mr. Cooper’s behalf an
extension of the filing deadline to October 15, 2015. Id. ¶ 13. In the interim, Mr. Cooper remitted
an estimated tax payment of $630,550.00, resulting in an overpayment of the taxes owed for the
2014 tax period. Id. ¶ 14. As the October 2015 filing date approached, Mr. Cooper became
concerned that his CPA would not timely file his 2014 tax return due to personal family issues the
CPA was experiencing. Id. ¶¶ 15–16. The CPA advised Mr. Cooper that “there would not be a
late filing penalty” because his 2014 tax obligation had already been fully paid prior to the
extended filing deadline. Id. ¶ 14. Due to alleged issues and delays on the part of the CPA, Mr.
Cooper’s 2014 tax return was filed eight months late, in June 2016, and the IRS assessed a late
filing penalty under I.R.C. § 6551(a)(1). Id. ¶¶ 17–18. The IRS collected the penalty from Mr.
Cooper’s overpayment of his 2014 tax obligation. See Ex. C to Pl.’s Compl. at 1, ECF No. 1-3.
On August 30, 2016, Mr. Cooper, through his tax attorney, filed a Form 843 (Claim for
Refund and Request for Abatement) requesting an abatement of the late filing penalty assessed for
the 2014 tax year. ECF No. 1 ¶ 19. The Complaint purports to attach a true and accurate copy of
the claim for refund and request for abatement. See ECF No. 1-3. Mr. Cooper’s tax attorney
signed the Form 843 as the preparer, and also signed on Plaintiff’s behalf under penalties of
perjury. Id. at 1. The Complaint does not allege that Mr. Cooper authorized his attorney to sign
the Form 843, nor does the Complaint include a copy of a Form 2848 (Power of Attorney and
Declaration of Representative).
On January 5, 2017, the IRS denied Mr. Cooper’s request for abatement. ECF No. 1 ¶ 20;
Ex. D to Pl.’s Compl. at 1, ECF No. 1-4. Mr. Cooper, through his tax attorney, filed an appeal on
March 6, 2017, which the IRS denied via letter dated September 5, 2017. ECF No. 1 ¶¶ 21–22;
Ex. E to Pl.’s Compl. at 1, 4, ECF No. 1-5. The IRS addressed correspondence related to the denial
of Mr. Cooper’s claim for refund and subsequent appeal to Mr. Cooper’s tax attorney. ECF No.
1-4 at 1; Ex. F to Pl.’s Compl. at 1–2, ECF No. 1-6.
B. Procedural History
Mr. Cooper filed suit in this Court on September 5, 2019. See ECF No. 1. The Government
filed its Answer to the Complaint on December 4, 2019. Def.’s Answer, ECF No. 7. Following
the completion of fact discovery, the Government advised the Court that it had identified a
2
potential jurisdictional defect that it anticipated raising via dispositive motion. Joint Status Report
at 1, ECF No. 17. On May 13, 2022, the Government moved to dismiss the Complaint pursuant
to RCFC 12(b)(6). Def.’s First Mot. to Dismiss, ECF No. 21. The Government argued that Mr.
Cooper did not “duly file” his refund claim as required by I.R.C. § 7422(a) because he did not sign
the Form 843 under penalties of perjury and failed to submit a Form 2848 along with his refund
claim authorizing his tax attorney to sign and verify the claim on his behalf. Id. at 1, 4. Relying
on the recent decision in Brown v. United States, 22 F.4th 1008 (Fed. Cir. 2022), the Government
contended that these defects warranted dismissal with prejudice for failure to state a claim upon
which relief may be granted. Id. at 3. It acknowledged, however, that in discovery Mr. Cooper
denied failing to submit a Form 2848 with his refund claim and produced what he claimed to be
“a true and correct copy of the documents filed with the IRS Form 843,” including a Form 2848
signed August 11, 2016. Id. at 8; Ex. 4 to Def’s First Mot. to Dismiss at 55, 59–62, ECF No. 21-
1. Mr. Cooper responded to the Government’s motion on June 10, 2022, producing another copy
of the Form 2848, dated August 11, 2016, which was stamped as received by the IRS on March
13, 2017, as part of Mr. Cooper’s appeal. Pl.’s Resp. to Def.’s First Mot. to Dismiss at 1, 8, EFC
No. 22; Ex. 1 to Pl.’s Resp. at 70–71, ECF No. 22-1.
On July 5, 2022, the Government withdrew its Rule 12(b)(6) motion, stating that upon
further research it believed the defects in Mr. Cooper’s refund claim were jurisdictional. Def.’s
Mot. to Withdraw at 1, ECF No. 24. The Government filed the instant motion on July 8, 2022.
Def.’s Second Mot. to Dismiss, ECF No. 25. The motion raises the same grounds for dismissal—
i.e., that Mr. Cooper’s refund claim was not “duly filed” due to his failure to comply with the
signature verification requirements—but, contrary to its initial motion, the Government relies on
circuit precedent preceding Brown to support a jurisdictional argument. Id. at 1, 12–15. The
3
Government now contends that Brown is not binding because the Brown panel could not overrule
prior panel decisions finding that § 7422(a) sets forth jurisdictional prerequisites to filing suit. Id.
at 18–21.
Mr. Cooper filed his opposition on August 4, 2022. Pl.’s Resp. to Def.’s Second Mot. to
Dismiss, ECF No. 26. He does not contest the Government’s position that any filing defects related
to his refund claim raise a jurisdictional issue. Id. at 20. But Mr. Cooper continues to dispute
claims that he failed to submit the Form 2848 alongside his Form 843 at initial filing and that the
Form 2848 does not authorize his tax attorney to sign and verify the refund claim on his behalf.
Id. at 1, 7–10. He also argues that the IRS waived any non-compliance with the signature
verification requirements by accepting and processing his refund claim and appeal. Id. at 18–20.
C. Standard of Review
“Subject-jurisdiction is a threshold matter; without it, ‘the only function remaining to the
court is that of announcing the fact and dismissing the [case].’” Health Republic Ins. Co. v. United
States, 161 Fed. Cl. 510, 517 (2022) (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)). On
a Rule 12(b)(1) motion, “a court must accept as true all undisputed facts asserted in the plaintiff’s
complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc.
v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); Estes Express Lines v. United States, 739
F.3d 689, 692 (Fed. Cir. 2014). However, the Court is not confined to the “face of the pleadings”
when jurisdictional facts are in dispute, and it may review evidence presented outside the pleadings
to resolve factual questions necessary to a finding on jurisdiction. Griffin v. United States, No. 21-
2307T, 2022 WL 1101817, at *3 (Fed. Cl. Apr. 13, 2022); Mark Smith Const. Co. v. United States,
10 Cl. Ct. 540, 541 n.1 (1986). If the Court determines that the plaintiff has failed to meet “the
burden of establishing the court’s jurisdiction over its claims by a preponderance of the evidence,”
the Court must dismiss the case. Trusted Integration, 659 F.3d at 1163.
4
II. DISCUSSION
A. Following Recent Binding Precedent, Any Signature Verification Defect in Mr.
Cooper’s Refund Claim Does Not Raise a Jurisdictional Question.
As an initial matter, the Court must determine whether the Government’s arguments are
properly raised by a motion to dismiss for lack of subject-matter jurisdiction. 1 The Government
argues that verification of a claim for refund is a jurisdictional prerequisite under I.R.C. § 7422(a).
ECF No. 25 at 12. According to the Government, because Mr. Cooper failed to properly verify
his refund claim under penalties of perjury in compliance with the statutory and regulatory
requirements, his claim was not “duly filed” and thus the Court lacks jurisdiction. Id. at 17–18.
Although it acknowledges that the United States Court of Appeals for the Federal Circuit recently
held in a precedential decision that the “‘duly filed’ requirement in § 7422(a) is more akin to a
claims-processing rule than a jurisdictional requirement,” the Government claims the Brown
decision is not binding. Id. at 19 (quoting Brown, 22 F.4th at 1011); see id. at 20–23. It urges the
Court to apply prior panel decisions holding the contrary.
Section 7422(a) provides:
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.
I.R.C. § 7422(a) (emphasis added). The Supreme Court has held that § 7422(a) waives sovereign
immunity from refund actions against the United States only when a taxpayer seeking refund has
filed a timely refund claim with the IRS prior to filing suit. United States v. Dalm, 494 U.S. 596,
1
The Court notes that Plaintiff does not dispute that the issue raised is jurisdictional;
nonetheless, the Court must independently address its own jurisdiction. See St. Bernard Parish
Gov’t v. United States, 916 F.3d 987, 992–93 (Fed. Cir. 2019).
5
608–10 (1990); see United States v. Michel, 282 U.S. 656, 658 (1931) (“The permission to sue
[under § 7422] is conditioned on the filing of a claim and the lapse of six months or the
disallowance of the claim within that period . . . .”). 2
The Federal Circuit has likewise held that certain filing requirements related to the
adequacy of a refund claim—as opposed to the fact of filing—are jurisdictional. See, e.g., Chi.
Milwaukee Corp. v. United States, 40 F.3d 373, 374 (Fed. Cir. 1994) (citing Burlington Northern,
Inc. v. United States, 684 F.2d 866, 868 (Ct. Cl. 1982)) (holding that the “filing [of] a refund claim
with the IRS that complies with IRS regulations” is “a jurisdictional prerequisite to a refund suit”);
Stephens v. United States, 884 F.3d 1151, 1156 (Fed. Cir. 2018) (affirming dismissal for lack of
jurisdiction where refund claim did not meet the specificity requirements imposed by Treas. Reg.
§ 301.6402-2(b)(1)); Waltner v. United States, 679 F.3d 1329, 1334 (Fed. Cir. 2012) (affirming
dismissal for lack of jurisdiction where refund claim was not properly executed for purposes of
Treas. Reg. § 301.6402-3(a)(5), nor sufficiently specific as required by § 301.6402-2(b)(1)).
Prior to Brown, the Circuit had not considered whether signature verification requirements
were jurisdictional prerequisites for a “duly filed” refund claim. Several judges of this court,
however, followed the reasoning of pre-Brown circuit decisions to dismiss under RCFC 12(b)(1)
actions involving refund claims that were not properly verified, including in the case that resulted
in the Brown appeal. See, e.g., Mattson v. United States, 153 Fed. Cl. 476, 482–83 (Fed. Cl. 2021)
2
The Complaint demonstrates that Mr. Cooper filed a timely refund claim with the IRS
and commenced a timely action in this Court following the IRS’s disallowance of his claim. ECF
No. 1 ¶¶ 14, 17–22; see I.R.C. §§ 6511(a), 6532(a)(1)–(2). Other evidence likewise shows that he
paid the penalty he seeks to recover prior to filing suit. See Exs. to Def.’s Second Mot. to Dismiss
at 1–3, ECF No. 25-3; see I.R.C. § 1346(a)(1). The Government does not dispute that Mr. Cooper
satisfied these jurisdictional requirements.
6
(citing Chi. Milwaukee, 40 F.3d at 374.); Brown v. United States, 151 Fed. Cl. 530, 533–34 (2020)
(citing Waltner, 679 F.3d at 1333).
The Government is correct that Brown departed with that prior circuit precedent. In Brown,
the plaintiff-taxpayers submitted amended tax returns seeking refunds related to the Foreign
Earned Income Exclusion. 22 F.4th at 1010. The taxpayers’ attorney signed the returns on their
behalf but initially did not attach any power of attorney. Id. As here, the Government filed an
answer to the complaint and then moved to dismiss for lack of jurisdiction. The trial court first
held that § 7422(a)’s “duly filed” requirement is jurisdictional and then found that the taxpayers’
returns did not meet the requirements to be a “duly filed” claim. Id. at 1011. Brown specifically
observed that, while “the Supreme Court in Dalm did not rule that meeting the requirement of
being ‘duly filed’ was jurisdictional,” some Federal Circuit decisions have “held that a taxpayer’s
failure to comply with other § 7422(a) requirements (including those implemented by regulation)
generally is jurisdictional.” Id. (citing Stephens, 884 F.3d at 1156, and Waltner, 679 F.3d at 1333).
It went on to hold that those prior circuit decisions are irreconcilable with the Supreme Court’s
decision in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 &
n.4 (2014). Id. Concluding that the “duly filed” requirement is more akin to a claims-processing
rule, Brown upheld the trial court’s decision under RCFC 12(b)(6) rather than RCFC 12(b)(1). 3
This Court is unquestionably required to follow Federal Circuit precedent. See, e.g., Coltec
Indus., Inc. v. United States, 454 F.3d 1340, 1353 (Fed. Cir. 2006). The Government’s
jurisdictional argument puts the Court in the awkward position of choosing which of the
3
Brown was not the first Federal Circuit decision to raise the question of the effect of
Lexmark on the vitality of prior decisions holding that § 7422(a) is jurisdictional. See Walby v.
United States, 957 F.3d 1295, 1299–1300 (Fed. Cir. 2020). The discussion in Walby, however,
was not framed as a holding or conclusion, but rather as an “invitation[] to the en banc court to
revisit the legal issue raised.” Deckers Corp. v. United States, 752 F.3d 949, 965 (Fed. Cir. 2014).
7
conflicting precedential decisions to follow. The general rule in the Federal Circuit, as in other
circuits, is that a panel cannot overturn the decision of another panel. See Hensley v. West, 212
F.3d 1255, 1261 (Fed. Cir. 2000) (citing South Corp. v. United States, 690 F.2d 1368 (Fed. Cir.
1982)). The prior panel decision controls unless and until it is overruled by the Circuit sitting en
banc, by a statute, or by a subsequent Supreme Court decision. Strickland v. United States, 423
F.3d 1335, 1338 n.3 (Fed. Cir. 2005). Here, Brown relied on intervening authority from the
Supreme Court.
Although the Government takes issue with whether Lexmark expressly or implicitly
overruled the Federal Circuit’s prior decisions on the jurisdictional nature of § 7422(a), this Court
is not in a position to ignore Brown’s conclusion that the two are irreconcilable. See ECF No. 25
at 23 n.23 (noting that Lexmark is not a tax case, nor a case involving the United States’ waiver of
sovereign immunity). Moreover, the Federal Circuit has held that a panel is empowered to overrule
a prior panel decision “without en banc action” based on intervening authority, even where such
authority does not explicitly overrule the prior decision or address the precise issue. Cal. Inst. of
Tech. v. Broadcom Ltd., 25 F.4th 976, 991 (Fed. Cir. 2022) (citing Troy v. Samson Mfg. Corp.,
758 F.3d 1322, 1326 (Fed. Cir. 2014)) (holding that “the issues decided by the higher court need
not be identical in order to be controlling,” but “must have undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable”
(quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)); see Lone Star Silicon
Innovations, LLC v. Nanya Tech. Corp., 925 F.3d 1225, 1235 (Fed. Cir. 2019) (holding that prior
circuit decisions treating 35 U.S.C. § 281 as a jurisdictional requirement were “irreconcilable”
with Lexmark and, on that basis, departing from the precedent).
8
In short, while the Court appreciates the Government’s argument, it is more appropriately
addressed by the Circuit itself such that this Court has clear guidance on which line of precedent
it should follow when faced with an alleged filing defect in a refund case. Unless and until it is
told otherwise, the Court will follow Brown as controlling, as a number of other judges of the court
have done. See Vensure Hr, Inc. v. United States, No. 20-728T, 2023 WL 2004522, at *5–6 (Fed.
Cl. Feb. 15, 2023) (holding filing deficiencies are not jurisdictional under Brown), appeal filed
No. 23-1640 (Fed. Cir. Mar. 22, 2023); Ruebsamen v. United States, No. 19-1834, 2022 WL
2315722, at *3–4 (Fed. Cl. Apr. 15, 2022) (same); Order, Warnement v. United States, No. 21-
2165T (Fed. Cl. Feb. 8, 2023) (denying the Government’s Rule 12(b)(1) motion).
B. The Court Denies the Government’s Alternative Request to Dismiss for Failure to
State a Claim.
Even though the Government premised its motion solely on RCFC 12(b)(1), in a final
footnote at the end of its reply the Government posits an alternative ground for dismissal. If it
finds Brown controlling, the Government requests that the Court dismiss the Complaint with
prejudice for failure to state a claim. Def.’s Reply at 18 n.7, ECF No. 27. Because the pleadings
are closed, such request could be raised only by a motion for judgment on the pleadings under
RCFC 12(c). See RCFC 12(b), (c), (h)(2)(B).
Granting judgment on the pleadings “is appropriate where there are no material facts in
dispute and the [moving] party is entitled to judgment as a matter of law.” Forest Labs., Inc. v.
United States, 476 F.3d 877, 881 (Fed. Cir. 2007) (citing N.Z. Lamb Co. v. United States, 40 F.3d
377, 380 (Fed. Cir. 1994)); see SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1166 (Fed. Cir.
2018) (holding that “legal questions based on [undisputed] underlying facts . . . may be, and
frequently [have] been, resolved on a Rule 12(b)(6) or (c) motion”). When resolving a Rule 12(c)
motion, the Court “accepts all well-pleaded facts as true, viewing them in the light most favorable
9
to the plaintiff.” SAP Am., 898 F.3d at 1166. The Court “may review ‘the content of the competing
pleadings, exhibits thereto, matters incorporated by reference in the pleadings, whatever is central
or integral to the claim for relief or defense, and any facts of which the . . . court will take judicial
notice.’” Charleston Area Med. Ctr., Inc. v. United States, 138 Fed. Cl. 626, 629 (2018), aff’d,
940 F.3d 1362 (Fed. Cir. 2019) (quoting 5C Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1367 (3d ed. 2004)).
Here, the legal question raised by the Government’s motion—i.e., whether Mr. Cooper’s
refund claim was “duly filed”—is the same regardless of whether it is treated as a jurisdictional or
non-jurisdictional issue, and the parties have fully briefed the issue. The Government alleges two
filing defects: (1) that Mr. Cooper did not submit the Form 2848 power of attorney along with the
Form 843 refund claim at the time he filed his claim, and (2) that the Form 2848 that Mr. Cooper
produced in discovery, assuming it accompanied his refund claim, did not specifically authorize
his tax attorney to sign the Form 843 on Mr. Cooper’s behalf under penalties of perjury. ECF No.
25 at 8–10, 17–18.
To resolve the Government’s alternative dismissal request, the Court need only examine
the documents that allegedly comprise Mr. Cooper’s refund claim—his Forms 843 and 2848—the
authenticity of which is not disputed, as well as the various applicable statutes, regulations, form
instructions, publications, and other guidance published by the IRS. The Complaint not only
incorporated by reference Mr. Cooper’s refund claim but also attached his Form 843 as an exhibit.
ECF No. 1 ¶ 19; ECF No. 1-3. Although he did not include the Form 2848 produced in discovery
in the copy of the refund claim attached to the Complaint, it is unquestionably central and integral
to both Mr. Cooper’s claim for relief and the Government’s defense because it is determinative of
whether Mr. Cooper submitted a valid refund claim. See Charleston Area Med. Ctr., 138 Fed. Cl.
10at 629. The various sources of law and other official agency documents are matters of public
record and capable of judicial notice. Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., 605 F. Supp.
3d 28, 44 n.6 (D.D.C. 2022) (explaining that the Court may take judicial notice of official
documents that are publicly available on government websites).
Neither of the alleged defects identified by the Government warrant judgment on the
pleadings for failure to state a claim. With respect to the first alleged defect, the law is clear. IRS
regulations expressly require that a power of attorney (such as Form 2848) “must accompany the
[refund] claim” when the claim is executed by the taxpayer’s representative. Treas. Reg. §
301.6402-2(e). As such, the Federal Circuit has held that a refund claim is not “duly filed” if it is
neither signed by the taxpayer under penalties of perjury nor by a legal representative pursuant to
“tendered powers of attorney” authorizing him or her to sign the claim on the taxpayer’s behalf.
Brown, 22 F.4th at 1012. Judges of this court have also dismissed refund cases where a power of
attorney was not contemporaneously submitted with a refund claim that was signed by a
representative on the taxpayer’s behalf. See, e.g., Vensure, 164 Fed. Cl. at 286. And because
signature verification requirements derive from the Internal Revenue Code, the IRS cannot waive
this type of defect. Brown, 22 F.4th at 1013.
However, whether Mr. Cooper’s Form 2848 accompanied his Form 843 at the time he filed
his claim appears to be in dispute. The Government relies on the fact that the Form 2848 is not
included in the copy of the refund claim attached to the Complaint, as well as the fact that the IRS
has purportedly been unable to locate any record establishing that Mr. Cooper submitted the Form
2848 with his claim. ECF No. 25 at 8–9, 10 n.12. But the Government also acknowledges that
Mr. Cooper subsequently produced in discovery a copy of his refund claim that included the Form
2848, and he specifically denied that he failed to submit the form along with the Form 843. Id. at
11
8–9; see Exs. to Def.’s Second Mot. to Dismiss at 61–62, ECF No. 25-3. Mr. Cooper explains in
his opposition that he did not include the Form 2848 in the exhibits to the Complaint because it
“contains sensitive information and [is] not material . . . to the merits of the abatement claim itself.”
ECF No. 26 at 8. In this posture, where the standard of review requires that the Court accept Mr.
Cooper’s allegations as true and make all reasonable inferences in his favor, judgment on the
pleadings is not appropriate with respect to this issue. See Forest Labs., 476 F.3d at 881; see also
Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 325 (2d Cir. 2011) (holding that standard of review
does not require a “Rule 12(c) motion be granted if evidence that had already been produced during
discovery would fill the perceived gaps in the Complaint”). Accordingly, the Government’s
dismissal request is denied on this ground but without waiver to it being raised as appropriate in
any motion for summary judgment or at trial.
The second alleged defect also raises a question of law but, unlike the first issue, there are
no disputes about the underlying facts. The Government argues that Mr. Cooper’s Form 2848 did
not authorize his tax attorney to sign the Form 843 on Mr. Cooper’s behalf because it only
identified on Line 3 (related to “Acts authorized”) tax matters involving his Form 1040 income
tax return for tax years 2010–2016. ECF No. 25 at 10–11; ECF No. 25-3 at 61. As the Government
notes, nowhere did the power of attorney specifically identify Form 843, nor did Mr. Cooper check
the box labeled “Sign a return” on Line 5a. ECF No. 25 at 10–11. As such, the Government
argues that the Form 2848 does not contain, as the regulation requires, a “clear expression” that
Mr. Cooper intended to authorize his tax attorney to sign the Form 843 on his behalf under
penalties of perjury. Id. at 9 (quoting Treas. Reg. § 601.503(a)(6)). Mr. Cooper rejoins that his
Form 2848 plainly complied with the form and form instructions, which required no other
authorization. ECF No. 26 at 8–11. Both parties argue that their positions are supported by the
12
unambiguous language of Form 2848, the form instructions, IRS publications, and other IRS
guidance. See id. at 11; ECF No. 27 at 8.
Having reviewed Mr. Cooper’s Form 2848 and the various applicable statutes, regulations,
and official agency documents, the Court agrees with Mr. Cooper. By way of background, the
statutory and regulatory filing requirements appear largely undisputed. Because Mr. Cooper
sought a refund of a late-filing penalty, he was required to submit a claim to the IRS by filing a
Form 843. Treas. Reg. § 301.6402-2(c). Because that form is an “other document required to be
made under any provision of the internal revenue law or regulations,” the Internal Revenue Code
requires a Form 843 to be “signed in accordance with forms or regulations prescribed by the
Secretary.” I.R.C. § 6061(a). The statute also requires a Form 843, “[e]xcept as otherwise
provided by the Secretary,” to “contain or be verified by a written declaration that it is made under
the penalties of perjury.” Id. § 6065. The implementing regulations carry out these requirements.
See Treas. Reg. § 301.6402-2(a)(1)–(2) (requiring a taxpayer to file a claim for refund, if by a
particular form, “in a manner consistent with such form, form instructions, publications, or other
guidance found” on the IRS’s website); id. § 301.6402-2(b)(1) (requiring a refund claim to be
“verified by a written declaration that it is made under the penalties of perjury”). IRS regulations
also specifically provide that a Form 843 “may be executed by an agent of the person assessed” so
long as the form is accompanied by a power or attorney. Id. § 301.6402-2(e).
A separate regulatory provision sets forth the requirements for powers of attorney. See id.
§ 601.503. Among other information, a power of attorney must contain “[a] clear expression of
the taxpayer’s intention concerning the scope of authority granted to the recognized
representative(s).” Id. § 601.503(a)(6). The regulation expressly identifies Form 2848 as an
acceptable power of attorney document and provides that “[a] properly completed form 2848
13
satisfies the requirements for [ ] a power of attorney (as described in § 601.503(a)).” Id.
§ 601.503(b). The critical question in this case then is whether Mr. Cooper “properly completed
form 2848,” id., “consistent with such form, form instructions, publications, or other guidance”
issued by the IRS, id. § 301.6402-2(a)(2). The answer is yes.
Contrary to the Government’s argument, the form, form instructions, publications, and
other guidance materials plainly did not require Mr. Cooper’s Form 2848 to specifically identify
Form 843 or specifically authorize his tax attorney to sign Form 843 in order to grant such
authorization. Instead, Mr. Cooper’s Form 2848 broadly authorized his tax attorney “to receive
and inspect [Mr. Cooper’s] confidential tax information and to perform acts that [he could]
perform with respect to the tax matters” identified in the form. ECF No. 25-3 at 61 (Line 3). The
Government argues that these authorized acts are strictly limited to the types of acts provided in
the following sentence of the form—i.e., signing “agreements, consents, or similar documents.”
Id. It contends that signing a Form 843 refund claim does not fall within these categories. ECF
No. 27 at 8–9. But the list does not purport to be exhaustive, as it is identified as an “example,”
ECF No. 25-3 at 61, and the form instructions define the acts a representative is authorized to
perform more broadly as signing “agreements, consents, waivers, or other documents,” id. at 64
(emphasis added). An IRS publication that also addresses powers of attorney, contains yet a
broader description, explaining that if a power of attorney is not limited the representative
“generally can perform all acts that you can perform, except negotiating or endorsing a check.”
I.R.S. Publ’n 947 at 7 (Feb. 2018), https://www.irs.gov/forms-pubs/about-publication-947.
Nor is there anything in the form or form instructions that required Mr. Cooper to check
the “Sign a return” box on Form 2848 in order to authorize his tax attorney to sign a refund claim
on Mr. Cooper’s behalf. The Government argues that similar policy concerns underlying specific
14
authorizations to sign a return apply equally to authorizations to execute a Form 843 because both
are signed under penalties of perjury. See ECF No. 27 at 8–9. But the relevant question is not
whether a specific authorization would be a prudent requirement but rather whether the applicable
regulations, form, or form instructions actually required it. As Form 2848’s instructions explain,
there are certain acts that a power of attorney does not authorize a representative to perform absent
express authorization by the taxpayer, including signing a return. 4 ECF No. 25-3 at 64. This is
because the power to sign tax returns is limited by regulation to only a few enumerated
circumstances. See id. (citing Treas. Reg. § 1.6012-1(a)(5)). And in such circumstances, the return
must be accompanied by a power of attorney, such as Form 2848, “specifically authorizing [an
individual] to represent his principal in making, executing, and filing the income tax return.”
Treas. Reg. § 1.6012-1(b)(3)(ii) (emphasis added).
Those regulatory provisions do not apply to claims for refund, except in the case of a refund
of income taxes, which must be made on the appropriate amended income tax return. Id.§ 301.6402-2(c) (referring taxpayers to Treas. Reg. § 301.6402-3 “[f]or special rules applicable to
refunds of income taxes”). In contrast, the regulatory provision permitting a representative to sign
a refund claim that is not made by amended return does not impose any specific authorization
requirements, only that the “power of attorney must accompany the claim.” 5 Id. § 301.6402-2(e).
4
The other acts not authorized absent express authorization are “the power to substitute or
add another representative” and the “power to execute a request for disclosure of tax returns or
return information to a third party.” ECF No. 25-3 at 64. Notably, these “specific authorities” do
not include signing a refund claim made via Form 843. See id.; see also id. at 61 (Line 5a).
5
For these reasons, the Government’s reliance on cases such as Mattson v. United States,
153 Fed. Cl. 476 (2021), are inapposite. See ECF No. 25 at 2 (collecting cases). In that case and
other similar cases, the courts dismissed the taxpayers’ actions because their refund claims—all of
which were made by amended return—were not accompanied by a power of attorney that checked
the “Sign a return” box. See, e.g., Mattson, 153 Fed. Cl. at 478–79. Since special rules apply to
15
And while the Government is correct that Mr. Cooper could have specifically authorized his tax
attorney to sign the Form 843 by checking the catch-all “Other acts authorized” box, nothing in
the form or form instructions explained that he had to do so or should do so to effect such
authorization. ECF No. 25-3 at 61; see id. at 66.
Next, Mr. Cooper’s Form 2848 broadly authorized his tax attorney to represent him (i.e.,
to access his confidential tax information and perform certain acts) with respect to matters
involving Mr. Cooper’s Form 1040 income tax returns for multiple years, including the 2014 tax
year at issue here. Id. at 61 (Line 3). According to the form instructions, this authorization
included representation for penalties related to those specific tax returns. Id. at 65; see I.R.S. Tech.
Adv. Mem. 201736021 at 2 (Sept. 8, 2017) (advising that “Forms 2848 that list only a specific
return cover representation for penalties, payments, and interest related [ ] to that specific tax
return”), https://www.irs.gov/pub/irs-wd/201736021.pdf. Thus, contrary to the Government’s
argument, the form and form instructions did not require Mr. Cooper to identify Form 843
separately or specifically as a matter subject to the power of attorney; it was automatically included
in the authorization for the broader matter identified. Indeed, with respect to penalties, the
instructions direct a taxpayer to identify the matter as “Civil Penalty” only if the taxpayer wants
to limit the authorization to representation for penalties. ECF No. 25-3 at 66. And in that case,
the instructions advise that the taxpayer need not identify a tax form at all or enter the specific
penalty. Id.
Similarly, a taxpayer need only check the box on Form 2848 for “Specific use not recorded
on the Centralized Authorization File (CAF)” if he intends the authorization to be for a one-time
the signing of a return, the claims in Mattson and the other cases unquestionably failed to strictly
comply with the IRS’s regulations, forms, and form instructions.
16
or specific-use grant of authority. Id. at 61 (Line 4), 66; I.R.S. Publ’n 947 at 10 (explaining that
“[i]f the tax matter described on line 3 of Form 2848 concerns [a matter not recorded on the CAF
system] specifically, check the box on line 4” (emphasis added)), 11 (explaining that Line 4 is used
to “restrict the use of [ ] powers of attorney to a specific use that is not recorded on the CAF”). As
the Government correctly notes, this line of the form is applicable to claims filed on Form 843.
ECF No. 25 at 11. But Mr. Cooper’s Form 2848 did not purport to restrict the power of attorney
only to representation with respect to a refund claim.
The decisions in Wilson v. United States, No. 18-408T, 2019 WL 988600 (Fed. Cl. Feb.
27, 2019), and Special Touch Home Care Services v. United States, No. 20-CV-3051, 2022 WL
673660 (E.D.N.Y. Mar. 7, 2022), do not persuade the Court otherwise. In Wilson and Special
Touch, the taxpayer’s representative signed the Form 843 in the preparer section but there was no
signature on the line designated for the taxpayer’s jurat. Wilson, 2019 WL 988600, at *1; Special
Touch, 2022 WL 673660, at *2. In each case the Form 843 was accompanied by a Form 2848
that, like the instant case, did not specifically identify Form 843 or specifically authorize the
representative to sign the Form 843. Wilson, 2019 WL 988600, at *4; Special Touch, 2022 WL
673660, at *2.
Neither decision is an enthusiastic endorsement of the Government’s position. Wilson
observed that the “IRS regulations leave several important holes or uncertainties in their
application to the facts of this case.” 2019 WL 988600, at *1. Ultimately the court held that the
taxpayer had not met his burden to show that the Form 2848 “contained a clear expression of his
intention concerning the scope of [the representative’s] authority sufficient to act on plaintiff’s
behalf to sign the refund claim.” Id. at *4; see id. at *5. But Treas. Reg. § 601.503(b) provides
that a properly completed Form 2848 satisfies that criteria, and the court did not make a finding
17
that the taxpayer incorrectly completed the form. 6 Special Touch also lacks much analysis of the
defect at issue here or a clear finding of the taxpayer’s non-compliance. The court acknowledged
that only a return (not a Form 843) requires specific authorization in Line 5a but suggested that
signing a Form 843 is “likely beyond the scope of the acts explicitly authorized by the form.”
Special Touch, 2022 WL 673660, at *6 (emphasis added). Based on its own close review and
consideration, the Court respectfully takes a different view.
Accordingly, the Government is not entitled to judgment on the pleadings as a matter of
law with respect to the second alleged defect in Mr. Cooper’s Form 2848.
III. CONCLUSION
For the foregoing reasons, the Government’s Motion to Dismiss under RCFC 12(b)(1) is
DENIED. The parties shall submit a joint status report by no later than May 23, 2023, proposing
a schedule for further proceedings.
SO ORDERED.
Dated: May 9, 2023 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
6
At most, Wilson held that the taxpayer had “not shown why Form 2848 would require a
taxpayer to indicate expressly that his representative is empowered to sign a return under penalty
of perjury on his behalf, but would not so require for a refund claim, which is also to be signed
under penalty of perjury.” 2019 WL 988600, at *5. The answer is that the regulations do not
require specific authorization for non-return refund claims. Compare Treas. Reg. § 1.6012-
1(b)(3)(ii) with id. § 301.6402-2(e). If that is an inconsistent policy, it is incumbent on the IRS to
amend its regulations and forms.
18