United States District Court, W.D. New York
ESTATE OF FLORENCE W. KIRSCH, deceased, ROBERTA K. FELDMAN, administrator, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge.
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.
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
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.
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:
W. Kirsch is a patient known to me.
1. [Ms.] Kirsch has been diagnosed with a cognitive mental
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
I hereby certify that, to the best of my knowledge and
belief, the above representations are true, correct, and
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).
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.).