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November 30, 1994



The opinion of the court was delivered by: DAVID G. LARIMER

Plaintiff, Wanda Szpunar-Lojasiewicz, commenced this action against the Commissioner, Internal Revenue Service ("IRS"), to obtain a refund of Federal Insurance Contributions Act ("FICA") taxes in the amount of $ 3,745.31 which her employer allegedly withheld improperly and transmitted to the IRS.

 The United States has moved for summary judgment on the ground that plaintiff's claim is time-barred pursuant to 26 U.S.C. § 6511. For the reasons discussed below, the Government's motion is granted and the complaint is dismissed.


 The following facts are not in dispute. Plaintiff was a non-resident alien employed by the Rochester Institute of Technology ("RIT"), at Rochester, New York during the period in question. RIT withheld FICA taxes from her pay during three quarters of calendar year 1985 and three quarters of calendar year 1986. This amounted to $ 1,786.83 in 1985 and $ 1,958.48 in 1986 (totalling $ 3,745.31). On approximately September 25, 1990 plaintiff filed a claim for refund which was received by the IRS. The Government contends that this notice was untimely under 26 U.S.C. § 6511 and, therefore, the claim must be denied. The Government does not dispute the fact that RIT should not have collected the taxes. Had plaintiff made a timely claim, the "IRS would have refunded the FICA tax since she was a J visa holder . . . exempt from FICA tax." (Letter from Roslyn Owens, Problem Resolution Office, Buffalo, New York, Internal Revenue Service, dated June 14, 1993, attached to plaintiff's complaint.)

 Plaintiff claims that prior to September 25, 1990, she had filed a claim for a refund with the IRS. She claims that this document was filed on or about March 25, 1989. As evidence of this filing, plaintiff has submitted a copy of the claim form, IRS Form 843, dated "3.25.89." The IRS denies ever receiving the claim and suggests that the purported "copy" may have been altered.


 Standard for Summary Judgment

 A party is entitled to summary judgment if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 (c). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a patty who fails to make a showing sufficient to establish the existence of an element essential to that patty's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Some alleged factual dispute will not suffice to defeat an otherwise proper motion for summary judgment Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Accordingly, the moving patty may obtain summary judgment by showing that the nonmoving party has little or no evidence to support her case. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223-24 (2d Cir. 1994). But in considering the motion, the court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmoving patty. Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994).

 Statute of Limitations For Tax Refunds

 The Internal Revenue Code provides a procedure for a taxpayer to recover a refund for taxes paid in error or paid in excess of the proper amount due. 26 U.S.C. § 6413(b). 28 U.S.C. § 1346(a) grants the United States District Court original jurisdiction over (1) "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected," provided that a claim for refund or credit has been duly filed first. 28 U.S.C. § 7422.

 The process is not open-ended, however. A limitations period applies to claims such as plaintiff's. 26 U.S.C. § 6511(a) and (b) provide, in relevant part, as follows:

(a) Period of limitation on filing claim. Claim for credit or refund of an overpayment of any tax imposed . . . shall be filed by the taxpayer 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.
(b) Limitation on allowance of credits and refunds. (1) Filing of claim within prescribed period. No credit or refund shall be allowed or made after the expiration of the period of limitation . . . unless a claim for ...

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