Gerstein v. United States

56 Fed. Cl. 630, 91 A.F.T.R.2d (RIA) 2371, 2003 U.S. Claims LEXIS 137, 2003 WL 21354615
CourtUnited States Court of Federal Claims
DecidedMay 2, 2003
DocketNo. 01-629T
StatusPublished
Cited by2 cases

This text of 56 Fed. Cl. 630 (Gerstein v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerstein v. United States, 56 Fed. Cl. 630, 91 A.F.T.R.2d (RIA) 2371, 2003 U.S. Claims LEXIS 137, 2003 WL 21354615 (uscfc 2003).

Opinion

ORDER

WIESE, Judge.

In March 1990, the Internal Revenue Service (“IRS”) advised plaintiff, AMva N. Ger-shtein, appearing pro se, that he would receive a refund of employment tax penalties that the IRS had assessed and collected from him for tax year 1984. Plaintiff alleges that he never received this refund. In his complaint, plaintiff asserts entitlement to a refund of these penalty taxes under three counts: (i) claim for refund; (ii) “account stated”; and (in) breach of contract.

This case is now before the court on defendant’s motions to dismiss Counts I and II for lack of jurisdiction (based on lack of timeliness) and for summary judgment as to Count III. For the reasons set forth below and as explained by the court during oral argument, defendant’s motions are granted.

I.

On May 16,1985, the IRS assessed a trust fund recovery penalty (“civil penalty”) against plaintiff in the amount of $33,496.18 in connection with the failure of his company, Laredo Broadcasting, to remit quarterly employment taxes. That penalty, plus interest and costs subsequently assessed, was charged to plaintiffs December 1984 civil penalty account. Plaintiff satisfied these assessments by direct payments and by credits from other tax periods, ultimately abating the taxes owed under the civil penalty and creating a credit in plaintiffs account.

When plaintiff sold Laredo Broadcasting in March 1990, an IRS representative attended the closing to collect the quarterly employment taxes due the following month. At that time, the IRS employee informed plaintiff that he would receive a refund of approximately $40,000 in penalty taxes paid in 1984.

A refund in the amount of $41,077.03 (including $12,325.69 in interest) was subsequently recorded in the IRS’s files as of June 1990, bringing the balance of plaintiffs civil penalty account to zero. Under IRS procedures, such an action would have resulted in the mailing of an explanation for the refund, but it is unclear from the record whether plaintiff ever received such notification. Plaintiff did, however, receive a Form 1099-INT in January 1991 which reflected $12,326 in interest paid by the IRS in 1990. Plaintiff included this amount in the interest income reported on his 1990 federal income tax return.

From the time the IRS representative advised him of the anticipated refund until June 1994, plaintiff claims that he made periodic inquiries at the IRS office in San Antonio, Texas, to determine why he had not received a refund check and whether the filing of a refund claim was necessary. Plaintiff contends that he was repeatedly told that no cheek had been issued but that the filing of a claim for refund was not required because, in plaintiffs words, “when the check issued, it would show up on his records and a claim could then be filed if the check did not arrive.”

In June 1994, plaintiff relocated to Yorba Linda, California, where he again contacted the local IRS office to inquire about his expected refund. Plaintiff maintains that he was once again told that no check had been issued. Thereafter, and then again in 1995, plaintiff requested copies of all of his tax records, purportedly explaining to the IRS “the connection of the tax transactions with [his] business in Texas.” These explanations notwithstanding, the records provided. to plaintiff did not show the issuance of a refund check.1

On September 23, 1997, plaintiff wrote to the Senate Finance Committee about the missing refund check. The Senate Finance Committee in turn referred his inquiry to the IRS Taxpayer Advocate in the South Texas District. In an April 20, 1998, response to plaintiffs inquiry, the Taxpayer Advocate advised plaintiff that “the Trust Fund Recovery Penalty assessed against [him] for nonpay[632]*632ment of corporate tax liability ... [was] subsequently removed and a refund of $41,077.03 was issued on June 18,1990.”

Plaintiff filed a Taxpayer Statement Regarding Refund, Form 3911, with the Problem Resolution Section of the IRS South Texas District office, dated May 18, 1998, stating that he had not received a refund for 1984. Plaintiff identified the “Type of return” as “Business” but entered no information as to the type of return he had filed with the IRS or the date on which it was filed.

One month later, in a June 19,1998, letter, the Chief of the IRS Customer Service Division in Austin, Texas, advised plaintiff that the IRS was tracing the missing check and apologized for the delay. The letter went on to say: “If the check hasn’t been cashed, you will receive your refund by Sep. 09,1998. If the check has been cashed, we will send you a copy of the cashed check and a claim form.” On July 31, 1998, the Chief of Customer Service provided his final response to plaintiffs inquiry:

Our records show that your refund check was mailed to you on June 15, 1990, and subsequently cashed. The age of the check makes it impossible to provide any further information about it, and no photocopy is available. Since we have no record of your prior claim of non-receipt on this check, we must assume that you received and cashed it. No further action will be taken on your claim.

On November 2, 1998, plaintiff filed a Claim Against the United States for the Proceeds of a Government Check, Form 1133. On the claim form, plaintiff stated that he had not received a government check.

By letter dated February 4, 1999, the IRS responded to an earlier inquiry submitted on plaintiffs behalf pursuant to an authorized power of attorney. The IRS advised plaintiff that according to information provided by the Department of the Treasury Financial Management Service, a refund check dated June 15, 1990, in the amount of $41,077.03 had been mailed to the address shown on plaintiffs tax account at that time and was subsequently cashed. The letter also noted that the refund “included $12,325.96 [in] interest, and therefore the IRS would have issued ... a Form 1099-INT in January 1991, which would have included this amount. Our records show that $12,326.00 interest income was reported on your 1990 Form 1040.”

On June 21, 1999, plaintiff filed a second Taxpayer Statement Regarding Refund, Form 3911. This time, plaintiff indicated the “Type of return” as “Individual” and the amount of the refund as $53,402.75. Plaintiff also noted that he “was unaware of this refund initially. Now that he is aware of it he realizes that he never received it.”

The Director of the IRS’s Austin, Texas, Customer Service Center issued plaintiff a notice of claim disallowance on November 8, 1999:

This letter is your legal notice that we have disallowed your claim____
We have completed our review of [your] Form 1133 [Claim Against the United States for the Proceeds of a Government Cheek] and the evidence you provided. Our records show that your check was cashed and we believe you benefitted from the check. Since the information you sent did not prove otherwise, we can not take further action.

On December 26, 2001, a manager of the Check Claims Branch of the Financial Processing Division of the Department of the Treasury responded to an earlier inquiry from the IRS concerning the allegedly missing check:

The Department of the Treasury maintains records of paid Federal government checks for six years and seven months in accordance with 31 U.S.C. 3702

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56 Fed. Cl. 630, 91 A.F.T.R.2d (RIA) 2371, 2003 U.S. Claims LEXIS 137, 2003 WL 21354615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerstein-v-united-states-uscfc-2003.