The opinion of the court was delivered by: PRATT
George C. PRATT, District Judge.
By this action, plaintiff seeks a refund of $6,383.11 in federal corporate income taxes claimed to have been overpaid for the year 1967. The Government has moved pursuant to FRCP 12(b)(1) to dismiss the complaint with prejudice, on the ground that the Court lacks jurisdiction over the subject matter since plaintiff's refund claim is time barred.
Plaintiff duly filed its corporate income tax returns for the years 1967 and 1968. On October 27, 1969, plaintiff filed an amended return for 1968 showing total net operating losses for the years 1965-1968 of $115,539.53 which plaintiff claims qualifies for net operating loss carry-back treatment.
By decision dated February 12, 1973, the United States Tax Court determined that there was a tax deficiency in the amount of $4,654.79 due from the plaintiff for the year 1967.
By a series of payments between March 12, 1974 and August 20, 1974, plaintiff paid the Internal Revenue Service (Service) a total of $6,383.11, representing the deficiency plus interest.
On September 9, 1974 plaintiff filed with the Service its claim giving rise to this action. Plaintiff sought refund of the income tax paid for the year 1967 in the sum of $6,383.11, that sum being the amount which had been paid pursuant to the Tax Court's decision of February 12, 1973.Plaintiff claims that a carry-back of the losses reported on its amended return for 1968 (filed on October 27, 1969) more than offsets the deficiency paid in 1974 for the year 1967 pursuant to the Tax Court's 1973 decision.
By letter dated June 5, 1975, the Service disallowed plaintiff's claim because "the 1967 year was set up by Tax Court". This action followed, and the Government has moved to dismiss with prejudice, asserting that the claim was not timely filed.
Section 6512(a) of the Code (Internal Revenue Code of 1954) provides that if a taxpayer files timely petition with the Tax Court, "no credit or refund of income tax for the same taxable year * * * shall be allowed or made and no suit by the taxpayer for the recovery of any part of the tax shall be instituted in any court * * *." (emphasis supplied.)
By this categorical language Congress has provided, in effect, that once a particular tax year is submitted to the Tax Court for determination, no other credit or refund of income taxes for the same taxable year shall be made, and no other suit shall be brought for their recovery. Three exceptions to this blanket rule are set forth in § 6512(a) itself; but all of them are inapplicable to plaintiff's claim.
There is a fourth exception, however, aimed specifically at credits or refunds related to net operating loss carry-backs. It is found in § 6511(d)(2)(B)(i) and reads in part:
"If the allowance of a credit or refund of an overpayment of tax attributable to a net operating loss carry-back is otherwise prevented by the operation of any law * * * such credit or refund may be allowed or made, if claim therefor is filed within the period provided in subparagraph (A) of this paragraph." (emphasis supplied)
Since allowance of plaintiff's refund is clearly prevented by the categorical language of § 6511(a), it qualifies as one which is "otherwise prevented by the operation of any law"; consequently, the refund claim might be maintained under § 6511 (d)(2)(B)(i) provided that it was filed "within the period provided in subparagraph (A) of this paragraph."
Subparagraph (A), in turn, provides insofar as pertinent here, a period of 38 1/2 months "from end of the taxable year of the net operating loss * * * which results in such carryback", which works out in this case to be March 15, 1972. Since plaintiff's claim was not filed until September 9, 1974, well past the end of the period described in subparagraph (A), it was untimely and must be dismissed.
The result compelled here by this web of statutory provisions appears harsh, but unalterable by this Court, since the legislative intent seems clear.
In Mar Monte Corp. v. United States, 503 F.2d 254 (CA9, 1974) the Ninth Circuit on virtually identical facts reached the same conclusion, and acknowledged that its result there "does not comport with ...