Cecil E. Daniel and Ann M. Daniel v. United States

Sixth Circuit

Cecil E. Daniel and Ann M. Daniel v. United States

454 F.2d 1166, 29 A.F.T.R.2d (RIA) 497, 1972 U.S. App. LEXIS 11587

CourtCourt of Appeals for the Sixth Circuit

DecidedJanuary 28, 1972

Docket71-1234

StatusPublished

Cited by3 cases

This text of 454 F.2d 1166 (Cecil E. Daniel and Ann M. Daniel v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cecil E. Daniel and Ann M. Daniel v. United States, 454 F.2d 1166, 29 A.F.T.R.2d (RIA) 497, 1972 U.S. App. LEXIS 11587 (6th Cir. 1972).

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Opinion

PER CURIAM.

This appeal is taken from the judgment of the District Court dismissing appellants-taxpayers’ suit for refund on the ground that the Court was without jurisdiction to consider the claim. The District Court found that the Government had mailed a notice of disallowance of the refund to taxpayers in July, 1962, and that the present suit not having been instituted until January, 1968, was barred by the two-year statute of limitations under 26 U.S.C. § 6532(a) (1).

Whether or not the notice of disallowance was mailed to taxpayers is a question of fact which cannot be disturbed on appeal unless the finding thereon is clearly erroneous. Rule 52, Fed.R.Civ.Pro. Herein the Government introduced sufficient evidence to show the fact of mailing, which evidence consisted of: (1) the testimony of unit supervisors for the Internal Revenue Service that by office custom the notice in question was sent to taxpayers by certified mail, and (2) the production of stamped receipts of the sender (the I.R. S.) which had been addressed to taxpayers. See Roupp v. Woods, 177 F.2d 149, 151 (Em.App.1949). Any further proof of mailing by certified mail or of the mechanical details thereof would have only provided corroboration of the fact of mailing. In the exercise of its discretion the trial court would have been justified in receiving such corroborative evidence if offered, but no duty to make such a tender rested upon the appellee.

Under the circumstances of the instant case, we cannot say that determination by the District Court that a mailing in fact occurred was clearly erroneous. The judgment of the District Court is affirmed.

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PER CURIAM.

This appeal is taken from the judgment of the District Court dismissing appellants-taxpayers’ suit for refund on the ground that the Court was without jurisdiction to consider the claim. The District Court found that the Government had mailed a notice of disallowance of the refund to taxpayers in July, 1962, and that the present suit not having been instituted until January, 1968, was barred by the two-year statute of limitations under 26 U.S.C. § 6532(a) (1).

Whether or not the notice of disallowance was mailed to taxpayers is a question of fact which cannot be disturbed on appeal unless the finding thereon is clearly erroneous. Rule 52, Fed.R.Civ.Pro. Herein the Government introduced sufficient evidence to show the fact of mailing, which evidence consisted of: (1) the testimony of unit supervisors for the Internal Revenue Service that by office custom the notice in question was sent to taxpayers by certified mail, and (2) the production of stamped receipts of the sender (the I.R. S.) which had been addressed to taxpayers. See Roupp v. Woods, 177 F.2d 149, 151 (Em.App.1949). Any further proof of mailing by certified mail or of the mechanical details thereof would have only provided corroboration of the fact of mailing. In the exercise of its discretion the trial court would have been justified in receiving such corroborative evidence if offered, but no duty to make such a tender rested upon the appellee.

Under the circumstances of the instant case, we cannot say that determination by the District Court that a mailing in fact occurred was clearly erroneous. The judgment of the District Court is affirmed.

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454 F.2d 1166, 29 A.F.T.R.2d (RIA) 497, 1972 U.S. App. LEXIS 11587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cecil-e-daniel-and-ann-m-daniel-v-united-states-ca6-1972.

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