United States District Court, S.D. New York
March 31, 2004.
ETHLYN R. CROSBY-JEAN, Plaintiff -against- DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Defendant
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
This is a pro se case against the United States Internal
Revenue Service. Plaintiff Crosby-Jean claims that she is due a refund
for improperly assessed self-employment taxes. Crosby-Jean has filed an
original complaint and an amended complaint. It is the amended complaint
which will be dealt with in this opinion. It will be referred to as "the
Defendant IRS moves to dismiss the complaint for lack of jurisdiction,
because Crosby-Jean failed to comply with statutory procedures for filing
claims against the IRS. The motion is granted.
Crosby-Jean alleges that she paid self-employment taxes in 1991
of $648.25 and $369.18 for the tax years of 1988 and 1990,
respectively, upon instruction by the IRS. According to IRS records
attached to the complaint, Crosby-Jean made the tax payment of $648.25 on
May 2, 1991 and the payment of $369.18 on July 11, 1991. The complaint
alleges that Crosby-Jean was never self-employed and that the $648.25 and
$369.18 were collected by the IRS erroneously. The complaint further
alleges that administrative claims for refund were properly made and that
they were disallowed, so that Crosby-Jean has exhausted all
administrative remedies. Attached to the complaint are various documents
upon which Crosby-Jean relies.
On October 21, 1991 Crosby-Jean sent a letter to the IRS in which she
I have paid the tax adjusted amount on the bill
enclosed, but I believe I paid the stated amount
due of $648.25 on time to avoid tax interest.
I have called the 1-800-829-1040 but am not clear
why I have to pay these tax charges.
I would appreciate if you would send me
information how this is calculated and the rules
and regulation[s] governing the policy related to
tax charge, self-employment tax and payment date
Thank you very much for your assistance in this
According to the complaint, no response was received to this letter.
It is not clear precisely what happened thereafter. However, there
is a letter from the IRS to Crosby-Jean dated March 8, 2000 (the
correct date may have been March 8, 2001), indicating that Crosby-Jean
had engaged in informal discussions with the IRS about the tax payments
involved in the present action, relating to tax years 1988 and 1990, and
also tax payments relating to tax years 1991, 1992 and 1993. The letter
notified Crosby-Jean that the IRS found in her favor with respect to the
latter three years. As to her claim regarding 1988 and 1990, the letter
You were previously contacted by Ms. Cayenne, our
Appeals Customer service representative who
forwarded your earlier year claims to the service
center to be acted upon.
Hopefully, you can get some satisfaction regarding
the tax years prior to 1991 from the Service
Center although there was no documentation in my
file to indicate that the earlier years are open
for statute purposes. Regardless, that is not my
call to make now I can not further
consider your case. Thank you.
Apparently Crosby-Jean did not receive satisfaction from the Service
On March 1, 2002 Crosby-Jean filed formal claims for refunds of the
$648.25 and $369.18. By letter dated April 22, 2002 the IRS disallowed
her claims for failure to comply with statutory time limits.
On May 15, 2002 Crosby-Jean filed an administrative appeal. The appeal
was obviously unsuccessful.
The Internal Revenue Code sets forth the following prerequisite for
bringing a refund suit in federal court:
No suit or proceeding shall be maintained in any
court for the recovery of any internal revenue tax
alleged to have been erroneously or illegally
assessed or collected, or of any penalty claimed
to have been collected without authority, or of
any sum alleged to have been excessive or in any
manner wrongfully collected, until a claim for
refund or credit has been duly filed with the
Secretary, according to the provisions of law in
that regard, and the regulations of the Secretary
established in pursuance thereof.
26 U.S.C. § 7422(a).
26 U.S.C. § 6511 (a) provides that an administrative claim "for
credit or refund of an overpayment of any tax imposed by this title . . .
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. . . ."
As to the $648.25 payment for the tax year 1998, it will be assumed
that the return was filed on April 15, 1989. The payment of that amount
was made on May 2, 1991. Three years from the date of the return would be
April 15, 1992. Two years from the time of payment would be May 2, 1993.
Crosby-Jean was thus required to file any claim for a refund of the
$648.25 no later than the May 2, 1993. Regarding the $369.18 payment for
the tax year 1990, it will be assumed that Crosby-Jean filed her return
on April 15, 1991. Three years from that date would be April 15, 1994.
The payment was made October 21, 1991. Two years from that date would be
October 21, 1993. Thus any claim for a refund of the $369,18 was required
to be made no later than April 15, 1994.
The formal claims made by Crosby-Jean were not filed until March 1,
2002. Thus, they were not timely, and this is the reason that the IRS
The question remains as to whether Crosby-Jean's letter to the IRS of
October 21, 1991 can be considered to be a claim. Of course, it only
relates to the $648.25 payment, and cannot be considered at all with
respect to the $369.18. No particular formality is required to make a
claim for a refund, as
long as the substance of a claim is presented. This has been
recognized in United States v. Forma, 42 F.2d 759, 764 (2d Cir.
1994), where the court stated that a "satisfactory informal claim must at
least alert the IRS that the taxpayer seeks a refund and must also
indicate the grounds upon which the taxpayer's claim is based."
Magnone v. United States, 733 F. Supp. 613, 618 (S.D.N.Y. 1989),
explained that while the "informal claims doctrine allows certain less
formal written claims to constitute notice within the statute of
limitations if the claims sufficiently communicate the nature of the
refund being sought," even informal claims "still must sufficiently
apprise the IRS of enough facts and legal theories to prevent surprise in
the later civil suit. It is not enough that the Service have in its
possession information from which it might deduce that the taxpayer is
entitled to, or might desire, a refund."
Crosby-Jean's letter of October 21, 1991 states that she is not clear
why she must pay these tax charges, and that she would appreciate having
the IRS send her information how the charge is calculated. The letter
does not state that she seeks a refund. Moreover, it states no facts or
grounds upon which a refund claim could be based.
The court concludes that the letter cannot be considered to be a claim
even with respect to the payment referred to i.e., the
$648.25. As to the $369.18, there is nothing even arguably constituting a
claim within the
required time period. Thus there was no compliance with the
requirements of 26 U.S.C. § 7422(a) with respect to the of proper
claims for refund as a condition for filing a suit in court.
The motion to dismiss the complaint is granted and the action is
© 1992-2004 VersusLaw Inc.