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Estate of Kirsch v. United States

United States District Court, W.D. New York

July 13, 2017

ESTATE OF FLORENCE W. KIRSCH, deceased, ROBERTA K. FELDMAN, administrator, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD United States District Judge.

         INTRODUCTION

         Plaintiff Estate of Florence W. Kirsch ("Plaintiff) brings this action seeking a refund of taxes paid to defendant United States of America ("Defendant"). (See Dkt. 17). Presently before the Court is Defendant's motion to dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (Dkt. 11). Because Defendant has not waived sovereign immunity under the circumstances of this case, this Court lacks subject matter jurisdiction and, therefore, Defendant's motion to dismiss is granted.

         FACTUAL BACKGROUND

         This case concerns the alleged overpayment of federal taxes by Florence W. Kirsch ("Ms. Kirsch"), who passed away on September 16, 2016. (Dkt. 17). Plaintiff alleges that it is owed $41, 535, plus accrued interest, for Ms. Kirsch's overpayment on her 2008 federal tax return. (See Id. at 6). In 2008, Ms. Kirsch had $13, 001 withheld, and had $14, 900 applied to her 2008 tax liability from her 2007 return. (Dkt. 17-1 at 3). Additionally, although Ms. Kirsch's 2008 tax return was due on April 15, 2009, she requested an extension of time to file until October 15, 2009, and with her request for an extension, Ms. Kirsch paid an additional $22, 718. (See Id. at ¶ 17; Dkt. 17-1 at 3). In total, Plaintiff paid $50, 619 in federal taxes in 2008, against a liability of $9, 713. (Dkt. 17-1 at 3).

         Ms. Kirsch's 2008 tax return was not filed until June 5, 2014. (Dkt. 17 at ¶ 21). Plaintiff asserts that the delay in filing was due to Ms. Kirsh's "financial disability, " and because she had not authorized anyone to file a return and refund claim on her behalf until 2013. (Id. at¶21).

         In an attempt to remedy the untimely nature of her submission, Ms. Kirsch submitted two key documents to the Internal Revenue Service ("IRS"). (See Dkt. 17-5). The first was a statement from Ms. Kirsch's physician, Dr. Cynthia L. Mazzoni, M.D. ("Dr. Mazzoni"). (Id. at 6). Dr. Mazzoni certified that:

         Florence W. Kirsch is a patient known to me.

1. [Ms.] Kirsch has been diagnosed with a cognitive mental impairment;
2. It is my medical opinion that in addition to issues in remembering to take certain medications, her mental impairment has prevented [Ms.] Kirsch from managing certain aspects of her financial affairs;
3. It is my medical opinion that the mental impairment has lasted for a continuous period of not less than twelve months and will continue to last indefinitely;
4. While first diagnosed on January 3, 2012, [Ms.] Kirsch first began reporting issues with her memory in 2007. Given the progressive nature of cognitive mental impairments, [Ms.] Kirsch would have begun to experience adverse effects of her mental impairment first in 2007 and it became progressively worse.
I hereby certify that, to the best of my knowledge and belief, the above representations are true, correct, and complete[.]

(Id.).

         Harold Kirsch ("Harold"), Ms. Kirsch's son, sent the second statement. (See Id. at 7). It states:

I was authorized to act on behalf of [Ms. Kirsch] in financial matters during the period described in Paragraph 4 of the letter from Dr. Mazzoni dated October 22, 2015. .. . However, the durable power of attorney was only effective after April 1, 2009. I did not exercise such authority during that period described in Paragraph 4, referenced above, because I had no knowledge living on the west coast that my assistance and authority were required. It is only recently, after the taxpayer's symptoms have become more pronounced, that I have begun to contemplate exercising my authority as prescribed in the power of attorney.

(Id.). The durable power of attorney described in Harold's letter was the second of two executed by Ms. Kirsch. (Dkt. 17 at ¶¶ 14-16). The first, executed on December 26, 2003, appointed Ms. Kirsch's "husband Seymour Kirsch... as her agent, and her son Kenneth Kirsch ("Ken") ... as her successor agent." (Id. at ¶ 14). Seymour Kirsch passed away on March 28, 2009. (Id. at ¶ 15).

         Ken discovered that he was appointed as the successor agent on the first durable power of attorney in December 2012. (Id. at ¶ 19). Ken began assisting Ms. Kirsch with her financial matters in early 2013. (Id.).

         PROCEDURAL ...


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