Finocchiaro v. United States

230 Ct. Cl. 899, 1982 WL 11258, 49 A.F.T.R.2d (RIA) 1252, 1982 U.S. Ct. Cl. LEXIS 195

• Court: United States Court of Claims
• Decided: April 13, 1982
• Docket: No. 692-81T
• Status: Published

Opinion

per curiam:

This is a suit by an income tax preparer to recover a $100 penalty that he paid to the Internal Revenue Service pursuant to section 6694(a) of the Internal Revenue Code of 1954, 26 U.S.C. §6694(a) (1976). The defendant has moved to dismiss the petition on the ground that the plaintiff did not first file a proper claim for refund with the Internal Revenue Service, as section 7422(a) of the Code requires. The defendant is correct.

Section 6696(c) of the Code provides that any claim for refund of a penalty paid under section 6694 (as the plaintiffs was) must be filed in accordance with regulations of the Secretary of the Treasury. The pertinent regulation, Treas. Reg. §1.6696-l(d)(6) (1979), requires that the refund claim include

A statement setting forth in detail—

(i) Each ground upon which each penalty overpayment claim is based; and

(ii) Facts sufficient to apprise the Internal Revenue Service of the exact basis of each such claim.

Form 6118, upon which the plaintiff filed his claim, states on the reverse side that in addition to completing items 1 through 6 of the form (which the plaintiff did), "you must also list your reason(s) for claiming a refund for each penalty you have listed.”

The plaintiff did not comply with these requirements. Instead, he merely listed various numbers, dates, and amounts, stated that the penalty was for "Negligence,” and gave the taxpayers’ names. He neither stated the ground upon which the penalty overpayment claim is based nor stated facts sufficient to inform the Service of the "exact basis” of his claim for refund, as the regulation requires. Without that information, the Service could not determine the merits of his claim, and for that reason has not ruled upon it.

The defendant’s motion to dismiss is granted. The petition is dismissed without prejudice to the plaintiffs right to file a proper, timely refund claim, and his right timely to file a new suit in this court or the district court if the Service should deny his claim for refund.