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ROCK v. UNITED STATES

January 24, 1968

Daniel J. Rock, Plaintiff,
v.
United States of America, Defendant


Levet, District Judge.


The opinion of the court was delivered by: LEVET

LEVET, District Judge:

This action is a claim for a refund of federal income taxes paid in 1955 by the plaintiff, Daniel J. Rock. The basis is a loss in the year 1957 which plaintiff proposed to carry back to the year 1955.

 The defendant, United States of America, has moved pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for an order dismissing this complaint on the ground that this court lacks jurisdiction over the subject matter due to the untimeliness of plaintiff's claim for a refund.

 Plaintiff and his wife properly filed a joint income tax return for the calendar year 1955 and paid the tax due. In an amended individual income tax return filed on or about September 9, 1958, plaintiff reported a loss of $4,829.07 for the calendar year 1957.

 Over two and one-half years later, during the latter part of March or early April, 1961, plaintiff visited the offices of the Internal Revenue Service in Jacksonville, Florida, where he allegedly then resided. He desired to make a claim for a refund on the above basis and, after explaining this to an unnamed agent or employee of the Internal Revenue Service, he was given Form 1045, entitled "Application For Tentative Carryback Adjustment" upon which to submit his claim. At this time plaintiff was advised that his claim would have to be filed by April 15th.

 Later that day plaintiff telephoned his accountant in New York City, requested him to prepare said refund claim, and sent him Form 1045. Upon completion and return of the form (which the accountant allegedly approved), plaintiff affixed his signature below the printed declaration that he had examined same, etc., and on April 13, 1961 sent it via registered air mail to the District Director of Internal Revenue in Albany, New York. The District Director received plaintiff's Form 1045 on April 20, 1961. Thereafter the Director sent plaintiff a form letter, dated May 9, 1961, which in part stated:

 
"Your Application for Tentative Carry-Back Adjustment, described above, is disallowed because it was not filed within a period of twelve months from the end of the taxable year of the net operating loss or unused excess profits credit from which the carry-back resulted, as provided in the Internal Revenue Code of 1954.
 
"Based on your application, we suggest you file a claim for refund on enclosed Form 843. The legal period to file the claim is limited to three years from the time the return was filed or due to be filed or two years after payment of tax, whichever is later.
 
"Enc: Form 1045
 
Form 843(2)"
 
(Pl. Ex. B)

 On or about June 12, 1961, plaintiff filed with the District Director in Albany, New York a claim for refund of taxes paid in 1955, using Form 843, which in bold letters is entitled "CLAIM." This claim was rejected as untimely on or about August 10, 1962 by the District Director in Jacksonville, Florida, to whom the claim had been transferred. Plaintiff then instituted his action for relief here.

 Jurisdiction of this court derives only from 28 USC § 1346 read in combination with 26 USC § 7422(a), which states in pertinent part:

 
"(a) No suit * * * shall be maintained in any court for the recovery of * * * any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund * * * has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the ...

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