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CONSOLIDATED EDISON CO. OF NEW YORK v. UNITED STAT

September 24, 1996

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Plaintiff Consolidated Edison Company of New York, Inc. ("Con Ed") brings the instant tax refund action to recover certain denied tax credits for tax years 1982, 1983 and 1984. Defendant United States of America moves to dismiss the refund claims for tax years 1982 and 1984 on the ground that the statutes of limitations have expired. In addition, the parties seek certification of the instant decision for interlocutory appeal pursuant to Fed. R. Civ. P. 1292(b).

 BACKGROUND

 During tax years 1982, 1983 and 1984, Con Ed made a series of payments to the Electric Power Research Institute ("EPRI"). See Complaint ("Compl.") PP 38, 39. EPRI conducts scientific research into the uses of electrical power and oversees a nationwide research and development program for the electric utility industry. See id.

 In September of 1983, 1984 and 1985, Con Ed timely filed corporate tax returns for tax years 1982, 1983 and 1984, respectively, with the Internal Revenue Service (the "IRS"). Id. PP 8, 22, 36. Pursuant to Internal Revenue Code ("I.R.C.") sections 41 and 174, in each of those returns Con Ed claimed a research and development credit for payments made to EPRI on the ground that EPRI qualifies as a public interest scientific organization under I.R.C. § 501(c)(3). *fn1" Id. PP 10, 24, 38.

 On April 24, 1986, March 16, 1987, and March 28, 1988, Con Ed filed a series of forms entitled "Consent to Extend the Time to Assess Tax" (hereinafter "consent forms") with the IRS, thereby extending the statute of limitations for each of the tax years in question to July 31, 1990. Compl. PP 13, 27, 41. On April 24, 1989, Con Ed executed a "Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment" for all tax years in question (the "waiver"). Id. PP 14, 28, 42. In the waiver, the parties stipulated to certain tax deficiencies and overpayments between the IRS and Con Ed. Id.

 On August 9, 1989, the IRS audited Con Ed's tax returns for tax years 1982, 1983 and 1984. See Compl., Exh. A. Pursuant to the audit, the IRS determined that Con Ed had overpaid its taxes for tax years 1982 and 1984 and underpaid its taxes for tax year 1983. Id. In addition, the IRS determined that EPRI did not qualify as a research organization under I.R.C. § 501(c)(3). Id. As a result, the IRS determined that Con Ed was not entitled to the credits claimed for its payments to EPRI. *fn2" Id.

 Id.

 On August 26, 27, and 28 of 1991, Con Ed filed amended tax returns for tax years 1982, 1983 and 1984, respectively, with the IRS. Compl. PP 15, 29, 43. In the amended returns, Con Ed claimed a refund for principal and interest on the denied credits relating to payment made to EPRI. Id. On February 7, 1992, the IRS denied all of Con Ed's refund claims. Id. PP 16, 30, 44.

 On February 1, 1994, Con Ed filed the instant action, seeking a refund of denied credits in the total amount of $ 468,686.00 plus interest, for payments made to EPRI in tax years 1982 (Count I), 1983 (Count II) and 1984 (Count III). Pursuant to Fed. R. Civ. P. 12(b)(1), defendant moves to dismiss Counts I and III on the ground that the statutes of limitations have expired. The parties also seek certification of this decision on defendant's motion pursuant to Fed. R. Civ. P. 1292(b). For the reasons set forth below, defendant's motion to dismiss and the application for § 1292(b) certification are granted. *fn3"

 DISCUSSION

 In ruling on a motion to dismiss, the Court accepts the allegations in the complaint as true. See Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993); Allen v. ...


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