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July 10, 2000


The opinion of the court was delivered by: Preska, District Judge.


Plaintiffs, Philip Kirsh and Rona Kirsh, seek a refund of $50,590 claiming overpaid taxes from 1993, 1992 and 1991 due to net operating loss ("NOL") carryback from 1994. The United States has made a motion to dismiss for lack of subject matter jurisdiction on the ground that plaintiffs failed to file a timely formal or informal claim. For the following reasons, defendant's motion is granted.


The following facts are not in dispute. Following the granting of an extension by the Internal Revenue System ("IRS"), plaintiffs' 1994 federal income tax return was due on October 15, 1995. (See Serpe Decl. Ex. 1, ¶ 5.) Plaintiffs filed their 1994 tax return in or about August 1996. (See id., ¶ 6.)

On or about November 17, 1997, plaintiffs filed Form 1045, Application for Tentative Refund, for the 1994 tax year to claim the net operating loss ("NOL") carryback to 1993, 1992 and 1991. (See id., ¶ 7.) On December 11, 1997, the IRS denied plaintiffs' claim for a refund because it had not been filed within twelve months after the end of the year in which the NOL carrybacks resulted. (See id., ¶ 8.) The IRS explained that plaintiffs could file a Form 1040X, Amended U.S. Individual Income Tax Return, for each of the years in which the NOL carrybacks resulted, i.e., 1993, 1992 and 1991. (See id.) The IRS also warned plaintiffs that the statutory limit for claims based on the 1994 tax year was April 15, 1998.*fn1 (See id. at Ex. C.)

Despite the IRS's warning, plaintiffs filed Form 1040X in or about January 1999, and it was received by the IRS on February 6, 1999. (See id., ¶ 9.) The IRS denied this claim in a letter dated April 21, 1999 stating that the Form 1040X was not timely because plaintiffs had failed to file within the three-year statute of limitations. (See id. at Ex. D.)

Plaintiffs appealed this disallowance contending that the filing of Form 1045 in November 17, 1997 gave the IRS sufficient and complete notice of plaintiffs' refund claim to constitute an informal claim for a refund within the statute of limitations period. (See id., ¶ 10.) The IRS denied the appeal. (See id.) Plaintiffs then commenced this action.


I. Motion to Dismiss Standard

In considering a motion to dismiss under Rule 12(b)(1), I must view the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985). I must accept as true the factual allegations stated in the complaint, see Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), and draw all reasonable inferences in favor of the plaintiff, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993). A motion to dismiss may be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Even under this liberal standard, however, I find that plaintiffs' claim suffers from deficiencies that mandate its dismissal.

II. Subject Matter Jurisdiction

It is well established that under the doctrine of sovereign immunity, no person may sue the federal government absent its consent to be sued. See F.D.I.C. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see also Morpurgo v. Bd. of Higher Educ. of N.Y., 423 F. Supp. 704 (S.D.N.Y. 1976). In consenting to be sued, the government may establish terms of its consent. See United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). If the delineated terms are not met, a court does not have jurisdiction over the action. See id. at 538, 100 S.Ct. 1349.

"Through 28 U.S.C. § 1346, Congress has broadly consented to suits [seeking a refund of taxes allegedly erroneously assessed or collected] against the U.S. in district courts." United States v. Forma, 42 F.3d 759, 763 (2d Cir. 1994). Prior to initiating an action in federal court pursuant to 28 U.S.C. § 1346, 26 U.S.C. § 7422(a) requires that a claim be "duly filed" with the IRS.*fn2 See United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025 (1931). "Duly filed" has been defined as filing a claim within the statute of limitations. See Rock v. United States, 279 F. Supp. 96, 98 (S.D.N.Y. 1968) ("It is elementary that an untimely claim is not `duly filed'.").

In addition to the above regulations, 26 U.S.C. ยง 6511(d)(2) states that the limitation period on the allowance of refunds of federal taxes based on an NOL carryback is "3 years after the time prescribed by law for ...

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