UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1983
CHARLES J. OROPALLO,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Cyr, Circuit Judges.
Charles J. Oropallo on brief pro se.
Jeffrey R. Howard, United States Attorney, James A. Bruton,
Acting Assistant Attorney General, Gary R. Allen, Gilbert S.
Rothenberg and Roger E. Cole, Attorneys, Tax Division, Department of
Justice, on brief for appellees.
May 24, 1993
Per Curiam. The district court dismissed Charles
Oropallo's suit for a tax refund as untimely under 26 U.S.C.
6511(a). We affirm.
I. Background
Charles Oropallo worked for the Raytheon Service
Company during the 1983 calendar year. In 1985, he was
incarcerated. Four years later the IRS informed him that he
had not filed any tax returns since 1982. Oropallo then
obtained his W-2 form from Raytheon. When he filled out his
1983 tax return, he discovered that he had overpaid his taxes
by approximately $698. He filed his return on March 19,
1990, claiming that amount as a refund. On May 23, 1990, the
IRS mailed him a notice disallowing his claim, explaining
that it could not "refund or credit tax that was paid more
than 3 years before the filing of the claim . . . ." The
notice also told Oropallo that he could sue to recover "any
tax . . . or other amounts for which this disallowance notice
is issued" by filing suit in the appropriate federal district
court (or the U.S. Claims Court) within two years from the
mailing date of the notice.
Oropallo filed suit in the district court within
the two-year period described by the disallowance notice. He
alleged that "extremely mitigating and extenuating
circumstances" explained his failure to file his 1983 tax
return on time. First, he had believed that a six-year
limitations period applied. Second, in March 1983, he had
suffered carbon monoxide poisoning which left him "extremely
incapacitated and unable to function competently for several
years" and, for that reason, he had been "completely unaware"
that he had not filed his 1983 tax return "and had in fact
believed he had timely filed said return." Furthermore, he
had been in prison since 1985, prison authorities had impeded
his legal efforts on his own behalf, and although he had
informed the U.S. Post Office of address changes while
incarcerated, he had not received notice that he had not
filed the 1983 return until mid-1989.
Without waiting for the government's brief, a
magistrate-judge recommended dismissing Oropallo's complaint,
finding that the suit was untimely under 26 U.S.C. 7422(a)
and 6511(a) and that the court therefore had no subject
matter jurisdiction over the suit under 28 U.S.C.
1346(a)(1). The magistrate-judge also concluded that
Oropallo's incarceration had not affected his ability to file
a timely tax return, since, while incarcerated, he had in
fact filed the return in question. Oropallo objected to the
magistrate-judge's recommendations. He noted that the
magistrate-judge had not considered his alleged carbon
monoxide poisoning before concluding that his late filing was
not excused, and he offered as an additional reason for his
delay the fact that his ex-wife had taken his tax and
financial records in early 1984 and moved to an unknown
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address. Oropallo also argued that the IRS had consented to
his suit because the disallowance notice stated that he could
bring suit within two years from the mailing date of the
letter and he had done so. The district court subsequently
accepted the magistrate-judge's recommendation and dismissed
Oropallo's suit.
On appeal, Oropallo alleges that the dismissal of
his suit violated his constitutional rights under both the
United States and New Hampshire Constitutions. He says that
dismissal of his suit deprived him of his property without
due process of law and of his right to access to the courts
to seek redress for his grievances. He also claims that,
given the circumstances he alleges, the statute of
limitations should have been tolled. Applying the
limitations period to him, he argues, also violated his equal
protection rights under the Constitution since, as he claims,
the IRS can "reach back" farther in time to make claims
against taxpayers than taxpayers can to recover refunds.
Finally, Oropallo asserts that the language of the IRS
disallowance notice, stating that he could bring suit within
two years of the mailing date of the notice, constituted
consent to his suit and waived any limitations bar. W e
affirm for the reasons described below.
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II. Discussion
Since the statute of limitations and equitable
tolling issues are at the heart of this case, we address them
first.
A. Equitable Tolling of Section 6511(a) and (b)
As the district court noted, 28 U.S.C. 1346(a)(1)
gives federal district courts jurisdiction over suits against
the United States "for the recovery of any internal-revenue
tax alleged to have been erroneously or illegally assessed or
collected." Likewise, the court correctly observed that the
jurisdictional grant in section 1346(a)(1) must be read to
incorporate the requirements of 26 U.S.C. 7422(a) and
6511(a). See United States v. Dalm, 494 U.S. 596, 601-02,
608-10 (1990).
Section 7422(a) provides that no suit for a tax
refund may be maintained unless "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." Section 6511(a)
states that a refund claim must be filed "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, or
if no return was filed by the taxpayer, within 2 years from
the time the tax was paid." Thus, section 6511(a)
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distinguishes between taxpayers who file returns and those
who do not. Taxpayers who file returns have the longer of
three years from the time they filed their return or two
years from the time they paid their taxes to file a claim for
refund, whereas taxpayers who have not filed returns have
only two years from the time they paid their taxes to file
their refund claims. A refund suit must have been timely
filed under one of the limitations periods in section 6511(a)
for the district court to obtain jurisdiction over the suit.
Dalm, 494 U.S. at 609.
The district court did not explain clearly how
Oropallo's claim was untimely under section 6511(a). Its
opinion contained language which would support either the
conclusion that it had applied the three-year limitations
period for taxpayers filing returns or that it had applied
the shorter two-year limitations period for taxpayers who did
not file returns. The government urges us to affirm the
district court's implicit holding that the two-year
limitations period for nonfiling taxpayers applies and that
Oropallo's late return is not a "return" which triggers
application of the three-year limitations period. Although
it acknowledges that there is a split in authority on the
question whether a return filed after its due date is a
"return" within the meaning of section 6511(a), compare,
e.g., Musser v. Commissioner, 92-1 USTC 50,245 (D. Alaska
-7- 7
1991) (the two-year limitations period measured from the time
the tax was paid is applicable to taxpayers filing late
returns), with Mills v. United States, 805 F. Supp. 448, 450
(E.D. Tex. 1992) (the three-year limitations period beginning
when the return is filed applies to a taxpayer filing a late
return), the government argues that a finding that taxpayers
filing late returns have only two years from the time their
taxes are paid to file refund claims better reflects the
statutory language.
We need not resolve this question in light of our
determination on the tolling issue. For purposes of our
present analysis, therefore, we assume for the sake of
argument that the cases holding that a late return is a
"return" within the meaning of section 6511(a) are correct.
Accordingly, we also assume that, if Oropallo filed his claim
for a refund within three years of his return, his refund
claim would be timely. Under 26 C.F.R. 301.6402-3(a), a
return which claims a refund may be considered a "claim for
refund" under section 6511(a). Oropallo's return, which was
filed on March 19, 1990, claimed a refund. Therefore, the
claim, having been filed on the same day as his return, would
obviously have been filed within three years of the filing of
the return and so was timely.
This assumption, however, does not mean victory for
Oropallo. As the government says, section 6511(b)(2)(A)
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places a cap on recovery of a refund which, in Oropallo's
case, prevents recovery of any taxes paid for the 1983 tax
year. Specifically, section 6511(b)(2)(A) states that, with
respect to a claim filed during the three-year period in
section 6511(a), the amount of the refund is limited to "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."
Since Oropallo filed his claim on March 19, 1990, he may
recover only taxes paid in the preceding three years -- i.e.,
any taxes paid on or after March 19, 1987. (As the
government notes, Oropallo has not claimed that he received
any extension of time for filing his 1983 return.) Under 26
U.S.C. 6513(b)(1), Oropallo's taxes were deemed paid on
April 15, 1984, well before the cut-off date of March 19,
1987. Therefore, he may not recover any portion of those
taxes.
Section 6511(b)(2)(A) explicitly forecloses any
refund for taxes not paid within the three-year period
preceding the date the claim was filed.1 Essentially,
1. Thus, where the taxes sought to be recovered are deemed paid as of the date the return was due (and no extension for filing the return was granted), a return such as Oropallo's, which itself is the refund claim, must be filed within three years of its due date for the taxpayer to be able to recover any of the taxes paid. Basically, for a taxpayer in Oropallo's situation, section 6511(a) and (b)(2)(A) work together with section 6513(b)(1) to impose a three-year statute of limitations on refund claims, measured from the
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therefore, it establishes an additional limitations period
separate from the three-year period in section 6511(a). See,
e.g., Mills v. United States, 805 F. Supp. 448, 450 (E.D.
Tex. 1992) (for a taxpayer who has filed a return, the
provisions of section 6511(a) and (b)(2)(A) establish "two
limitations hurdles" -- (1) a refund claim must be filed
within three years after the tax return is filed, and (2) the
amounts sought to be recovered must actually have been paid
in the three-year period preceding the filing of the claim).
That additional limitations period effectively bars some of
the refund claims which would be unquestionably timely under
section 6511(a). See, e.g., Rainey v. United States, 82-2
USTC 9442 (N.D. Ala. 1982) (the taxpayer's claim was not
untimely under section 6511(a), but it was denied under
section 6511(b)(2)(A) because the taxes had not been paid
within the prescribed period before the claim was filed);
McGregor v. United States, 80-2 USTC 9647 (Ct. Cl. 1980)
(same). Accordingly, unless the additional limitations
period imposed by section 6511(b)(2)(A) is equitably tolled,
Oropallo's action should be dismissed.
original due date of the tax return. See Tallon v. United
States, 84-2 USTC 9926 (C.D. Ill. 1984) (after discussing
the effect of sections 6511(b)(2)(A) and 6513(b)(1) on the taxpayers' timely refund claim, which was made in a late return, the court concluded that "the Plaintiffs have been barred from recovering their refund by failure to file their returns within three years of the time they were due").
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2. Equitable Tolling
Oropallo argues that the limitations period should
be tolled "[i]n the interests of justice" given the
"extremely mitigating and extenuating circumstances" of his
case. In our opinion, only Oropallo's alleged carbon
monoxide poisoning could qualify for that characterization.2
The government interprets Oropallo's argument to be an
attempt to invoke either the mitigation provisions of the tax
code, 26 U.S.C. 1311-14, or the judicial doctrine of
equitable recoupment. It correctly points out that neither
the mitigation provisions nor the equitable recoupment
doctrine apply. In view of Oropallo's status as a pro se
petitioner, however, we think we have an obligation to go
beyond the government's brief and to take account of recent
2. We assume that carbon monoxide poisoning, which Oropallo alleges not only incapacitated him for several years, but also deprived him of his ability to know that he had not filed a 1983 tax return, would be analogous to mental incapacity and thus could be a ground for equitable tolling if Oropallo could show that his alleged poisoning had actually prevented him from filing his 1983 return on time or from remembering earlier than 1989 that he had not done so. See Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir.
1987) (assuming, in a suit between private parties, that mental illness "might sometimes toll the statute of limitations," the court concluded that it did not do so where the plaintiff was represented by counsel at the relevant time and so was not actually prevented from timely filing suit by his mental illness). The other grounds for equitable tolling which Oropallo alleges do not appear to have caused him to delay filing his return, either in 1983 or in 1989 after he learned that his 1983 return had not been filed. For that reason, we do not see how they could be found to excuse that delay.
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developments in the law which are not discussed by the
government.
Before 1990, Oropallo would have had no basis for
claiming that the limitations periods in section 6511 should
be equitably tolled. Courts traditionally have declined to
apply equitable principles to toll statutes of limitations
against the United States, on the theory that the United
States could be sued only by virtue of its waiver of its
sovereign immunity and that the terms of any such waiver had
to be strictly construed. Irwin v. Veterans Administration,
498 U.S. 89, 111 S. Ct. 453, 458-59 (1990) (White, J.,
concurring); see, e.g, United States v. Dalm, 494 U.S. 596,
608 (1990).3 Therefore, except in clearly unique situations
which do not apply here, the limitations periods in section
6511 have not been equitably tolled. See, e.g., Ellis v.
United States, 82-1 USTC 9214 (Ct. Cl. 1982) ("[t]here is
nothing in any of the[] provisions [relating to tax refunds]
that permits an exception to th[e] time limitation to be made
3. In addition, tax laws have been viewed as technical laws which are not subject to general principles of equity. See
Lewyt Corporation v. Commissioner, 349 U.S. 237, 249 (1955);
Ewing v. United States, 914 F.2d 499, 501 (4th Cir. 1990),
cert. denied, 111 S. Ct. 1683 (1991). Consequently, courts
have required strict adherence to the administrative prerequisites set out in the Internal Revenue Code, including the explicit and clearly stated limitations periods at issue here. See Dalm, 494 U.S. at 608-10; In re Graham, 981 F.2d
1135, 1138 (10th Cir. 1992); Bruno v. United States, 547 F.2d
71, 73-74 (8th Cir. 1976); Dixon v. United States, 85-1 USTC
9173 (Cl. Ct. 1985).
-12- 12
because of the illness of the taxpayer or his family or other
extenuating circumstances"); Stepka v. United States, 196 F.
Supp. 184, 185 (E.D.N.Y. 1961) (the statute of limitations
relating to refund claims under the pre-1954 tax code is
"inflexible" and so not tolled by the taxpayer's mental
incompetency; there are only "rare exceptions" to the "rigid
prevailing rule[] that such statutes of limitations cannot be
extended in any circumstances," e.g., the prisoner of war or
fraud situation); contrast, e.g., Daney v. United States, 247
F. Supp. 533, 535 (D. Kan. 1965) (the court permitted tolling
of the limitations period on a refund claim by a noncompetent
restricted Indian because the general rules of tax law do not
apply "in a strict manner" to restricted Indians), aff'd, 370
F.2d 791 (10th Cir. 1966).
In Irwin v. Veterans Administration, 498 U.S. 89,
111 S. Ct. 453 (1990), however, the Supreme Court changed its
approach to the issue of equitable tolling in suits against
the government, holding that "the same rebuttable presumption
of equitable tolling applicable to suits against private
defendants should also apply to suits against the United
States." Id. at 457.4 In reliance on Irwin, several
4. Although the Court's opinion presents some interpretive difficulties, it would seem to have overruled or made irrelevant prior case law which sought to determine whether a particular limitations period could be tolled by determining whether the time limit was jurisdictional or not. See, e.g.,
Soriano v. United States, 352 U.S. 270, 276 (1957) (holding
that a limitations period on claims against the United States
-13- 13
federal district courts have permitted equitable tolling of
the limitations period in section 6511(a) or (b)(2)(A) in
view of a taxpayer's argument that mental incompetence had
kept him or her from timely filing a refund claim. See
Wiltgen v. United States, -- F. Supp. --, 93-1 USTC 50,044
(N.D. Iowa 1992) (section 6511(b)(2)(A)); Scott v. United
States, 795 F. Supp. 1028 (D. Hawaii 1992) (stating that
equitable tolling of section 6511(a) was at issue, although
the facts indicate that section 6511(b)(2)(A) could have been
involved as well); Johnsen v. United States, 758 F. Supp. 834
(E.D.N.Y. 1991) (section 6511(b)(2)(A)).5 In our view, the
contained in the statute granting jurisdiction over such claims could not be tolled); see Irwin, 111 S. Ct. at 458-59
(White, J., concurring) (establishing a presumption in favor of equitable tolling against the government was inconsistent with the Court's traditional approach and essentially overruled Soriano). The key issue is still Congressional
intent, but, by creating a presumption in favor of equitable tolling, the Court has squarely placed on the government the burden of showing that a particular limitations period may not be equitably tolled. Cf. Schmidt v. United States, 933
F.2d 639, 640 (8th Cir. 1991) (in an action under the Federal Tort Claims Act after Irwin, the government has the burden of
establishing the statute of limitations as an affirmative defense).
5. But see Vintilla v. United States, 931 F.2d 1444, 1447 &
n.1 (11th Cir. 1991), in which the court adhered to a pre- Irwin mode of analysis and ruled that the limitations period
in section 6511(a) may not be equitably tolled since timely filing of a refund claim is a jurisdictional prerequisite to suit. In Vintilla, the taxpayer had been required to pay
upfront the entire tax due on his severance benefit whereas similarly situated taxpayers paid taxes as if receiving the benefit in installments. The IRS had told the taxpayer that a refund claim could be filed after he litigated the mode of payment of the severance benefit; after the litigation had
-14- 14
relevant analysis has been altered yet again by a more recent
Supreme Court decision. In Lampf, Pleva, Lipkind, Prupis &
Petigrow v. Gilbertson, -- U.S. --, 111 S. Ct. 2773 (1991),
the Supreme Court considered whether to adopt a federal
limitations period in private suits under section 10(b) of
the Securities Exchange Act of 1934 and, if so, whether that
period would be subject to equitable tolling.6 The Court
concluded that a federal limitations period should be
adopted. It selected the 1-and-3-year limitations periods
contained in the 1934 Act and in the original remedial
ended, however, the IRS denied the taxpayer's claim as untimely.
6. Although Lampf involved a lawsuit between private
parties, it is clearly relevant here. As the Supreme Court stated in Irwin, equitable tolling principles in suits
against the government should be consistent with those applied against private defendants, and should be employed "no more favorabl[y]" against the government than against private defendants. Irwin, 111 S. Ct. at 457, 458.
Nor do we think that Lampf is inapplicable because it
considered a statute of limitations applicable to bringing a lawsuit rather than time limits imposed on the filing of an administrative claim. If a specific equitable consideration would justify tolling the limitations period for filing suit, that same equitable consideration should justify tolling the administrative time limits which have been held to be prerequisites to bringing suit. See Johnsen v. United
States, 758 F. Supp. 834, 835 n.1 (E.D.N.Y. 1991) ("the same
equitable considerations are involved in both judicial and administrative procedural defaults" and so a distinction between the equitable tolling of judicial actions and administrative exhaustion requirements cannot "reasonably" be drawn); Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
388-89 & n.2, 393 (1982) (deciding that a "statute of limitations" requiring that a charge of discrimination be filed with the EEOC within 90 days of the alleged unlawful employment practice could be equitably tolled).
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provisions of the Securities Act of 1933, as typified by
section 9(e) of the 1934 Act. See 111 S. Ct. at 2781, 2782
n.9.
Section 9(e) prohibits any action for a violation
of the section if not brought "within one year after the
discovery of the facts constituting the violation and within
three years after such violation." Id. at 2780 n.6 (quoting
15 U.S.C. 78i(e)). Citing Irwin, the Court acknowledged
that time limits in law suits are "customarily" subject to
equitable tolling. It also agreed that, in fraud cases, the
limitations period does not usually begin running until the
fraud is discovered. Nevertheless, the Court held that time
limits, expressed as in section 9(e), were not subject to
equitable tolling. In the Court's view, it was "evident that
the equitable tolling doctrine is fundamentally inconsistent
with the 1-and-3-year structure." Id. at 2782. It explained
what it meant as follows:
The 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary. The 3-year limit is a period of repose inconsistent with tolling. . . . "[T]he inclusion of the three-year period can have no significance in this context other than to impose an outside limit." (Citations omitted.) Because the purpose of the 3-year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period.
Id.
We think that section 6511(a) and (b)(2)(A) are
structured like the 1-and-3-period considered by the Supreme
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Court in Lampf. Under section 6511, a taxpayer who has filed
a return must clear two time barriers. The first one is in
section 6511(a), which requires taxpayers to file a refund
claim within three years of filing a return. We have assumed
that a return can be filed at any time after its due date and
still be a return for purposes of filing a claim within that
three-year period. Under that interpretation, the
limitations period in section 6511(a) is totally illusory.
See, e.g., Mills v. United States, 805 F. Supp. 448, 451
(E.D. Tex. 1992) (section 6511(a) would "permit a taxpayer to
file a tax return 40 years late and still have 3 additional
years in which to file a claim for refund"). In this
respect, the three-year period in section 6511(a) is
analogous to the one-year period discussed in Lampf. The
one-year period requires only that suit be filed within one
year after discovery of the facts which give rise to the
cause of action. Since the discovery of those facts could
occur any number of years after the statutory violation had
actually taken place, the 1-year period sets no real limit on
when suit can be brought.
The analogy between the limitations period in
section 6511(a) and the 1-year period typified by section
9(e) extends even further. In Lampf, the Supreme Court
commented that the one-year period for filing suit after
discovery of the facts giving rise to the cause of action
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made tolling unnecessary. Lampf, 111 S. Ct. at 2782. What
the Court obviously meant was that once someone who has been
defrauded knows the relevant facts, the 1-year period gives
that person ample time in which to sue and there is no need
to toll the 1-year limitations period. A similar state of
knowledge respecting the right to a refund can be attributed
to individual calendar year taxpayers who file income tax
returns. The return contains all the information necessary
to verify that there has been an overpayment of taxes and
that a refund is due. Accordingly, the three-year period in
section 6511(a) gives the taxpayer ample time to file a
refund claim, and there is no need to toll that period.
Essentially, then, section 6511(a) serves simply to
identify which taxpayers have properly positioned themselves
to obtain a refund. Like the 1-year period in Lampf,
however, it does not describe which of those potential
claimants will actually succeed in pursuing their rights.
That task is left to section 6511(b)(2)(A), which,
significantly, the tax code characterizes not as a
limitations period, but as a "limit on [the] amount of credit
or refund." See 26 U.S.C. 6511(b)(2)(A) (caption).7 As
7. Section 6511(b)(2)(A) works together with section 6511(a) and section 6513(b)(1) to bar recovery of any refund claims on late returns not filed within three years after the due date of the return, and thus it clearly operates like a statute of limitations. However, Congress's characterization of section 6511(b)(2)(A) as a "limit on [the] amount of credit or refund" rather than as a limitations period
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we said earlier, section 6511(b)(2)(A) limits the refund
recoverable to the amount of tax paid in the three-year
period immediately preceding the filing of the claim. For an
individual calendar year taxpayer like Oropallo, taxes
withheld from wages during the tax year are deemed paid on
April 15th of the following year, the date when the tax
return is due. See 26 U.S.C. 6513(b)(1). For that reason,
if the return is not filed and the claim not made within the
three years immediately following that date, section
6511(b)(2)(A) precludes the recovery of any of the taxes
paid.
Here, Oropallo's 1983 taxes were deemed paid on
April 15, 1984, and his refund claim was timely filed on
March 19, 1990, the same day he filed his return. Under
section 6511(b)(2)(A) he may recover any taxes paid in the
immediately preceding three-year period, i.e., on or after
March 19, 1987. But all of the taxes Oropallo seeks to
recover were paid before March 19, 1987, and thus he recovers
nothing. Unquestionably, then, that date serves as an
absolute cut-off point. By imposing an "outside limit" or
"cut-off" on the amount of taxes which can be recovered,
section 6511(b)(2)(A) operates like the three-year portion of
the limitations period in Lampf, and thus is a "period of
indicates more clearly than a simple limitations period would that Congress intended to establish an outside limit on the recovery of refunds.
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repose inconsistent with tolling". See 111 S. Ct. at 2782.
See Wiltgen v. United States, -- F. Supp. --, 93-1 USTC
50,044 (N.D. Iowa 1992) (calling section 6511(b)(2)(A) a
"period of repose," but, without referring to Lampf, finding
that the section could be equitably tolled under Irwin);
(calling the date beginning the three-year period immediately
preceding the date of a refund claim the "cut-off date").
Because, together, section 6511(a) and (b)(2)(A) function
like the 1-and-3-year period found inconsistent with
equitable tolling in Lampf, we conclude that those provisions
may not be equitably tolled.
B. Remaining Claims
Oropallo's remaining claims are without merit for
the reasons stated in the government's brief. We comment on
several claims only.
At the heart of Oropallo's due process claims is
the contention that he should have been given a hearing
before his refund claim was denied and his suit dismissed.
The short answer is that an administrative hearing would not
have changed the outcome for Oropallo. The critical facts
relating to the date Oropallo's taxes were paid and his
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refund claim filed are not disputed. In view of those facts,
section 6511 unquestionably bars Oropallo's recovery of any
portion of his 1983 taxes. Furthermore, it is well settled
that post-collection judicial review accords a taxpayer all
the process that is due under our tax laws. Martinez v. IRS,
744 F.2d 71, 72 (10th Cir. 1984); Rosenberg v. Commissioner,
450 F.2d 529, 533 (10th Cir. 1971) ("[d]ue process does not
require a hearing at the initial stage or at any particular
point of an administrative proceeding"); cf. Kahn v. United
States, 753 F.2d 1208, 1218-19 (3d Cir. 1985) (stating that
the principle that post-collection judicial review is
constitutionally sufficient does not apply where a taxpayer
has to pay part of a disputed penalty before being able to
seek judicial review, the court weighed the government's
interests against the taxpayer's, but concluded nonetheless
that no pre-collection hearing was constitutionally
required). Both this court and the district court have
reviewed the IRS's denial of Oropallo's refund claim and have
issued opinions explaining that his claim is barred because
it was untimely. Thus, Oropallo has received the post-
collection judicial review to which he was entitled. Second,
Oropallo argues that the disallowance notice and various IRS
publications referring to a two-year period for suit
constituted governmental consent to his suit which waived the
time bar. This argument fails to appreciate the distinction
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between a taxpayer's right to bring a lawsuit to review
administrative action and the taxpayer's separate obligation
to pursue first the administrative procedures prescribed in
the tax code. Section 6532(a)(1) of the Internal Revenue
Code contains the two-year limitations period in question.
It requires a taxpayer suing for a refund under section
7422(a) to bring suit within two years after the mailing date
of a disallowance notice. As is evident from the record,
Oropallo complied with that requirement. But section
6532(a)(1) regulates only the time for bringing a suit to
review the denial of an administrative claim. The Code also
imposes certain administrative requirements respecting refund
claims which Oropallo was required to follow. Those
administrative requirements are contained in sections 7422(a)
and 6511, see Rosenbluth Trading, Inc. v. United States, 736
F.2d 43, 45 n.1 (2d Cir. 1984), and have been discussed fully
in this opinion. Thus, Oropallo is right in saying that he
complied with the two-year period referred to in the
disallowance notice, but that notice could not have waived
his separate obligation to pursue his administrative remedies
in a timely fashion. See Allen v. United States, 439 F.
Supp. 463, 465 (C.D. Cal. 1977) (a notice disallowing
taxpayer's refund claim as untimely did not waive the
government's limitations defense under section 6511(a) by
stating that the taxpayer had two years in which to bring
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suit, but "merely . . . notif[ied] the Plaintiff of his right
to contest the government's interpretation of the
applicability of the statute of limitations").
Finally, Oropallo claims that his equal protection
rights have been violated because the IRS can reach back
farther in time to collect taxes than he can to collect a
refund. We think that Oropallo would be hard-pressed to show
that he and the IRS are similarly situated parties in the tax
collection context so as to make equal protection analysis
applicable. Cf. Musser v. United States, 92-1 USTC 50,245
(D. Alaska 1991) (it is not discriminatory for the government
to have a longer period to sue for recovery of erroneous tax
refunds than a taxpayer is allowed to sue for overpayment of
taxes since the IRS deals with millions of tax returns per
year while a taxpayer typically has only one return to be
concerned about each year). In any event, we find no such
violation here. As the government observes, in one respect
Oropallo's claim is factually wrong. Just as the taxpayer
has three years from the date of filing a return to file a
refund claim, so the government generally has only three
years from the date a return is filed to make a deficiency
assessment. See 26 U.S.C. 6501(a). As our opinion
explains, however, section 6511(a) and (b)(2)(A), together
with section 6513(b)(1), effectively impose on a taxpayer in
Oropallo's situation an additional, absolute three-year
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limitations period on refund claims beginning the date the
return was due. The government does not appear to be subject
to that limitations period in assessing deficiencies.
Nevertheless, the apparent disparate treatment does not
violate Oropallo's constitutional rights. It seems obvious
to us that, if the government were held to that same
additional limitations period, any taxpayer could (and many
might) prevent the government from ever assessing a
deficiency merely by waiting to file a return until three
years after its due date, an outcome that would seriously
undermine the collection of taxes.
The judgment of the district court is affirmed.
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