Petition for Writ of Certiorari — William R. Tinnerman, Petitioner v. United States

No. ______

In the

Supreme Court of the United States

__________________

WILLIAM R. TINNERMAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

__________________

PETITION FOR A WRIT OF CERTIORARI

__________________

JOSEPH A. DIRUZZO, III

Counsel of Record

DANIEL M. LADER

DIRUZZO & COMPANY

401 East Las Olas Blvd.

Suite 1400

Ft. Lauderdale, FL 33301

954.615.1676 (o)

954.827.0340 (f)

jd@diruzzolaw.com

dl@diruzzolaw.com

FEBRUARY 23, 2023

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

In Flora v. United States, 362 U.S. 145 (1960),

this Court considered the statutory grant of original

jurisdiction of, inter alia, “[a]ny civil action against the

United States for the recovery of any internal-revenue

tax alleged to have been erroneously or illegally

assessed or collected,” 28 U.S.C. §1346(a)(1), and

“conclude[d] that the language of [Section] 1346(a)(1)

can be more readily construed to require payment of

the full tax before suit than to permit suit for recovery

of a part payment.” Id. at 150–51. Thus, for tax refund

suits, the Flora rule requires that, before a district

court has jurisdiction to entertain a taxpayer’s suit,

the taxpayer pay the full amount of the tax that the

federal government contends is due.

The Flora rule has been the subject of

substantial criticism for, inter alia, being wrong as a

matter of statutory interpretation, and it concerns “a

question which is of considerable importance in the

administration of the tax laws.” Id. at 147. And while

recent decisions of this Court have emphasized that

statutes must be construed in strict accordance with

the enacted language, the Flora court acknowledged

that its holding hinged on an interpretation in which

“the statutory language is not absolutely

controlling[.]” Id. at 151.

The questions presented are:

1. Under the language of 28 U.S.C. §1346(a)(1), is

full payment of tax alleged to be owed for an

entire

taxable

period

a

jurisdictional

prerequisite for a district court to adjudicate a

ii

taxpayer’s refund claim of an erroneously or

illegally assessed or collected tax?

2. If “no” to the above, must Flora be overturned

by this Court?

iii

PARTIES TO THE PROCEEDING

The Parties to the proceeding are the

Petitioner, William R. Tinnerman, and the United

States of America.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

Counsel is unaware of any other proceedings to

which the instant appeal is directly related.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDING ...........................iii

CORPORATE DISCLOSURE STATEMENT ............iii

RELATED PROCEEDINGS ......................................iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ...................................... vii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINION BELOW ...................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISION INVOLVED .................... 2

STATEMENT .............................................................. 2

REASONS FOR GRANTING THE PETITION.......... 5

I.

THIS COURT SHOULD RECONSIDER ITS STATUTORY

CONSTRUCTION OF SECTION 1346(a)(1) IN

CONFORMANCE

WITH

ITS

LONGSTANDING

PRINCIPLE — WHICH HAS BEEN REINFORCED BY

MANY POST-FLORA DECISIONS — THAT STATUTORY

TEXT CONTROLS. .................................................. 5

v

A.

The Flora Rule, on Its Face, is Contrary to

this Court’s Fundamental Tenet that

Statutory Construction Must Be Based on

the Plain Meaning of the Enacted

Language. .................................................... 5

B.

The Flora Rule is Inconsistent with the

Overall Statutory Scheme of the Internal

Revenue Code. ........................................... 17

II. THIS CASE PRESENTS A RECURRING QUESTION OF

NATIONAL IMPORTANCE THAT REQUIRES THIS

COURT’S CORRECTION OF FLORA TO PROPERLY

APPLY OUR INTERNAL REVENUE LAWS. ........... 23

III. THIS CASE PRESENTS A GOOD VEHICLE. ............ 27

CONCLUSION .......................................................... 27

APPENDIX

Appendix A

Opinion in the United States

Court of Appeals for the Eleventh

Circuit

(August 25, 2022) ..................... App. 1

Appendix B

Judgment in the United States

Court of Appeals for the Eleventh

Circuit

(November 7, 2022) ................ App. 12

Appendix C

Order in the United States

District Court Middle District of

Florida Jacksonville Division

(September 27, 2021) ............. App. 13

vi

Appendix D

Judgment in a Civil Case in the

United States District Court

Middle

District

of

Florida

Jacksonville

Division

(September 28, 2021) ............. App. 26

Appendix E

Order Denying Rehearing in the

United States Court of Appeals

for

the

Eleventh

Circuit

(October 28, 2022) .................. App. 28

vii

TABLE OF AUTHORITIES

Cases

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004) ............................................ 6, 17

Bostock v. Clayton Cnty., Georgia,

140 S. Ct. 1731 (2020) ............................................ 11

Conroy v. Aniskoff,

507 U.S. 511 (1993) ................................................ 16

Davis v. Michigan Dept. of Treasury,

489 U.S. 803 (1989) ................................................ 17

Flora v. United States,

357 U.S. 63 (1958), on reh’g,

362 U.S. 145 (1960) .................................................. 7

Flora v. United States,

362 U.S. 145 (1960) ...................4-9, 11, 16-19, 21-27

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) .................... 12, 13, 14, 15, 16

Hughes Aircraft Co. v. Jacobson,

525 U.S. 432 (1999) ................................................ 15

Iselin v. United States,

270 U.S. 245 (1926) ....................................... 9, 10, 11

Magwood v. Patterson,

561 U.S. 320 (2010) .................................................. 5

viii

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) ................................................ 15

Nat’l Parks & Conservation Ass’n v. Morton,

498 F.2d 765 (D.C. Cir. 1974), abrogated by

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ...................................... 14, 16

Oklahoma v. Castro-Huerta,

142 S. Ct. 2486 (2022) .............................................. 5

Schindler Elevator Corp. v. United States ex rel.

Kirk, 563 U.S. 401 (2011) ...................................... 15

W. Virginia v. Env’t Prot. Agency,

142 S. Ct. 2587 (2022) ............................................ 17

Welch v. Helvering,

290 U.S. 111 (1933) ................................................ 18

Wisconsin Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ...................................... 12, 27

Statutes

26 U.S.C. § 7421(a) .................................................... 19

26 U.S.C. § 7803(a)(3) ................................................ 20

26 U.S.C. § 7803(a)(3)(C) ........................................... 18

26 U.S.C. § 7803(a)(3)(J) ........................................... 18

28 U.S.C. § 1254(1) ...................................................... 2

28 U.S.C. § 1346(a) ... 2, 5-11, 14, 19, 21, 22, 23, 26, 27

ix

Other Authorities

National Taxpayer Advocate Annual Report to

Congress 2018 ...................................... 20, 21, 24, 25

National Taxpayer Advocate Annual Report to

Congress 2022 .................................................. 20, 26

Rules

Sup. Ct. R. 13.1 ............................................................ 2

Sup. Ct. R. 13.3 ............................................................ 2

Sup. Ct. R. 13.5 ............................................................ 2

Sup. Ct. R. 29.2 ............................................................ 2

Sup. Ct. R. 30.1 ............................................................ 2

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, William R. Tinnerman, respectfully

petitions for a Writ of Certiorari to review the

judgment of the United States Court of Appeals for the

Eleventh Circuit.

OPINION BELOW

The judgment of the United States Court of

Appeals for the Eleventh Circuit (hereinafter, the

“Court of Appeals”) is reproduced in the Appendix

herein at App. 12. The opinion of the Court of Appeals

is unpublished, is cited as Tinnerman v. United States,

No. 21-14023, 2022 WL 3654844 (11th Cir. Aug. 25,

2022), and is reproduced in the Appendix herein at

App. 1-11. The denial of Petitioner’s Petition for

Rehearing, issued on October 28, 2022, is not officially

reported and is reproduced in the Appendix herein at

App. 28. The judgment of the District Court for the

Middle District of Florida is reproduced in the

Appendix herein at App. 26-27. The District Court’s

Order, cited as Tinnerman v. United States, No. 3:19CV-1429-TJC-PDB, 2021 WL 4427082 (M.D. Fla.

Sept. 27, 2021), is reproduced in the Appendix herein

at App. 13-25.

JURISDICTION

The opinion of the Court of Appeals that

affirmed the District Court’s judgment was entered on

August 25, 2022. A petition for panel rehearing was

denied on October 28, 2022. Petitioner timely moved

for an extension of time to petition this Court on

January 9, 2023, which was granted by Justice

2

Thomas on January 13, 2023. Supreme Court Rules

13.1, 13.3, 13.5, 29.2, and 30.1. Pursuant to this

Court’s extension of time, confirmed by letter dated

January 13, 2023, the present petition is being filed by

postmark on or before February 25, 2023. This Court

has jurisdiction over this matter pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. § 1346 confers upon the district courts

original jurisdiction over:

Any civil action against the United

States for the recovery of any internalrevenue tax alleged to have been

erroneously or illegally assessed or

collected, or any penalty claimed to have

been collected without authority or any

sum alleged to have been excessive or in

any manner wrongfully collected under

the internal-revenue laws[.]

28 U.S.C. § 1346(a).

STATEMENT

This case comes to this Court from the Court of

Appeals’ affirmance of the dismissal of Petitioner’s

first amended complaint on the grounds that the

District Court lacked subject matter jurisdiction. In

Petitioner’s first amended complaint, he sought the

following:

3

(1) judicial review of the actions the IRS

took with respect to his liabilities for tax

years 1999 through 2002…; (2) a refund

of taxes that were allegedly assessed

erroneously and collected by the Internal

Revenue Service (“IRS”) for tax years

1999 and 2000; and (3) a determination

that the IRS’s Notice of Certification of

Seriously Delinquent Tax Debt to the

State Department was erroneous and

reversal of that certification.

Tinnerman, 2022 WL 3654844, at *1; App. 1-3

Petitioner advanced four claims for relief, two

of which were dismissed as moot and are not

challenged here. Regarding the remaining two claims,

which sought the refund of taxes,

[Petitioner] alleged that he was not

required to file returns for 1999 or 2000

and was not notified otherwise, and he

erroneously self-assessed $2,449.00 in

taxes in 1999, meaning that he did not

owe taxes for that year and should have

had that amount refunded… [and]

alleged that he had made the same

mistake in 2000 and was owed a

$2,629.00 refund of the amount he paid.

Id.; App. 4.

“The government responded by moving to

dismiss[, inter alia,] because [Petitioner] had not

established that the government had waived

4

sovereign immunity for tax suits[.]” Id. at *2 (citing 28

U.S.C. § 1346(a)(1)) 1; App. 4. And “the district court

agreed with the government, dismissing all four

claims, and denying [Petitioner’s] request for leave to

file a second amended complaint. [Petitioner] timely

appealed.” Id.; App. 4.

On appeal with respect to the claims at issue,

the Court of Appeals affirmed the dismissal for lack of

subject matter jurisdiction solely for the reason that

this Court, in Flora, “held that the waiver of sovereign

immunity provided for in [Section] 1346(a)(1) only

applies when a taxpayer has paid to the IRS the full

amount of the contested tax liability.” Id. at *4 (citing

Flora, 362 U.S. at 150–51); App. 9.

1 Mistakenly cited as 29 U.S.C. § 1346(a)(1).

5

REASONS FOR GRANTING THE PETITION

I.

THIS

COURT

STATUTORY

1346(a)(1)

RECONSIDER ITS

SECTION

CONSTRUCTION

OF

IN

SHOULD

CONFORMANCE

WITH

ITS

LONGSTANDING PRINCIPLE — WHICH HAS BEEN

REINFORCED BY MANY POST-FLORA DECISIONS

— THAT STATUTORY TEXT CONTROLS.

A.

The Flora Rule, on Its Face, is

Contrary

to

this

Court’s

Fundamental Tenet that Statutory

Construction Must Be Based on the

Plain Meaning of the Enacted

Language.

The Flora rule was wrong from issuance of

Flora v. United States, 362 U.S. 145 (1960). And this

Court’s recent jurisprudence only has magnified

Flora’s incorrect statutory interpretation of Section

1346. Indeed, Section 1346(a) provides no text-based

reason to impose a full-payment prerequisite to

jurisdiction and, “[a]s this Court has repeatedly

stated, the text of a law controls over purported

legislative intentions unmoored from any statutory

text. The Court may not ‘replace the actual text with

speculation as to Congress’ intent.’” Oklahoma v.

Castro-Huerta, 142 S. Ct. 2486, 2496 (2022) (quoting

Magwood v. Patterson, 561 U.S. 320, 334 (2010)).

The Flora majority went to painstaking lengths

to interpret the statute to require full payment as an

absolute prerequisite to district court jurisdiction.

However, the plain meaning of the statutory text does

not even implicitly, let alone explicitly, impose that

6

requirement. To have done so, though, would have

been a straightforward task for Congress. For

instance, Congress could have used a basic

introductory qualifier such as, “after full payment,” or

it could have concluded the statutory subsection with

the phrase, “if such amount has been fully paid.”

The Flora Court’s interpretation of the statute

is based on its complicated and technical inference

that Congress intended to impose a jurisdictional

requirement, despite the fact that Congress could

easily, unambiguously, and explicitly have imposed

that requirement by adding a few simple words to the

text. Flora, and the rationale underpinning it, belies

this Court’s fundamental jurisprudence: “The

preeminent canon of statutory interpretation requires

us to presume that the legislature says in a statute

what it means and means in a statute what it says

there.” BedRoc Ltd., LLC v. United States, 541 U.S.

176, 183 (2004) (cleaned up).

Section 1346(a)(1) uses plain terms and makes

no mention of full payment. Thus, under this Court’s

“preeminent” approach to statutory interpretation,

“our inquiry begins with the statutory text, and ends

there as well if the text is unambiguous.” Id.

(collecting Supreme Court cases).

Furthermore, instead of following that

immutable principle of law, this Court on rehearing in

Flora redoubled the position “recognized in the prior

opinion, [that] the statutory language is not absolutely

controlling, and consequently resort must be had to

whatever other materials might be relevant.” Flora,

7

362 U.S. at 151. In the original opinion, this Court

observed, “[i]n matters of statutory construction the

duty of this Court is to give effect to the intent of

Congress, and in doing so our first reference is of

course to the literal meaning of words employed.”

Flora v. United States, 357 U.S. 63, 65 (1958), on reh’g,

362 U.S. 145 (1960). Nevertheless, the opinion

contended that Section 1346(a)(1) contains a “presence

of ambiguity in what might otherwise be termed a

clear authorization to sue for the refund of ‘any sum.’

Consequently, a thorough consideration of the

relevant legislative history is required.” Id. On

rehearing, Flora delved into external sources to divine

the meaning of Section 1346(a), beginning with the

legislative history. See 362 U.S. at 151. Indeed, Flora’s

holding required a far greater emphasis on extrastatutory sources than the text of the law itself. 2

Despite the purported connection between the

extra-statutory sources and the language of the law,

Flora’s conclusions on rehearing prompted sharp

criticism from Justice Whitaker in his dissent, as the

Flora rule ran antithetical to this Court’s central

“In the prior opinion we stated that, were it not for certain

countervailing considerations, the statutory language ‘might be

termed a clear authorization’ to sue for the refund of part

payment of an assessment. It is quite obvious that we did not

regard the language as clear enough to preclude deciding the case

on other grounds. Moreover, it could at that time be assumed that

the terms of the statute favored the taxpayer, because eight

members of the Court considered the extrinsic evidence alone

sufficient to decide the case against him. Although we are still of

that opinion, we now state our views with regard to the bare

words of the statute....” Id. at n. 6 (cleaned up, quoting Flora, 357

U.S. at 65).

2

8

canons: “[a] deep and abiding conviction that the

Court today departs from the plain direction of

Congress expressed in [Section] 1346(a), defeats its

beneficent purpose, and repudiates many soundly

reasoned opinions of the federal courts on the question

presented, compels me to express and explain my

disagreement in detail.” Id. at 178 (Whitaker, J.,

dissenting). 3

Justice Whitaker thoroughly reasoned the ways

in which Flora was wrongly decided. Despite the

unambiguous language of statutory text, 4 Justice

Whitaker proceeded

to an examination of the history of the

present

jurisdictional

provision,

[Section] 1346(a), and the scheme of the

present tax law to determine whether

there is any real support for the

Government’s contention that a proper

reading of the language of [Section]

1346(a) requires an implied qualification

to its obvious self-explanatory meaning,

so that full payment of an assessment,

alleged to have been illegal, is made a

condition upon the jurisdiction of a

3 With whom Justices Frankfurter, Harlan, and Stewart joined.

4 And that, upon ambiguity, “[a]lthough frequently the legislative

history of a statute is the most fruitful source of instruction as to

its proper interpretation, in this case that history is barren of any

clue to congressional intent.” Id. at 151.

9

District Court to entertain a suit for

refund.

Id. at 185 (Whitaker, J., dissenting).

Ultimately, even after considering (and

refuting) the majority’s explanations relying on

external sources, Justice Whitaker vigorously rejected

Flora’s “strained interpretation of the plain words of

[Section] 1346(a)[.]” Id. at 194 (Whitaker, J.,

dissenting). As he put succinctly:

English words more clearly expressive of

the grant of jurisdiction to Federal

District Courts over such cases than

those used by Congress do not readily

occur to me.

It must, therefore, be concluded that

there is no sound reason for implying into

[Section] 1346(a) a limitation that full

payment of an illegal assessment is a

condition upon the jurisdiction of a

District Court to entertain a suit for

refund.

Id. at 197 (Whitaker, J., dissenting).

Consistent with Justice Whitaker’s compelling

dissent, this Court’s precedent long has forbidden such

judicial legislation – including in the context of federal

tax statutes. “To supply omissions transcends the

judicial function.” Iselin v. United States, 270 U.S. 245,

251 (1926). This principal applies irrespective of

whether an omission is intended, especially when a

10

“statute was evidently drawn with care. Its language is

plain and unambiguous. What the government asks is

not a construction of a statute, but, in effect, an

enlargement of it by the court, so that what was

omitted, presumably by inadvertence, may be included

within its scope.” Id. at 250–51.

In Iselin, this Court considered the government’s

“argu[ment] that Congress clearly intended to tax all

sales of tickets; … that this general purpose of Congress

should be given effect, so as to reach any case within the

aim of the legislation; and that the act should, therefore,

be extended by construction to cover this case.” Id. at

250. However, this Court explained that the text of the

law is absolutely controlling:

It may be assumed that Congress did not

purpose to exempt from taxation this class

of tickets. But the act contains no

provision referring to tickets of the

character here involved; and there is no

general provision in the act under which

classes of tickets not enumerated are

subjected to a tax. Congress undertook to

accomplish its purpose by dealing

specifically, and in some respects

differently, with different classes of tickets

and with tickets of any one class under

different situations.

Id.

In the same vein, even if it is assumed arguendo

in this case that Congress did not “purpose to exempt”

from the waiver of sovereign immunity tax refund suits

11

absent prepayment in full, the statute “contains no

provision” requiring it. Id. And, especially given that

Section 1346(a) uses common terms applied in an

ordinary context, no plain reading of it reasonably leads

to the conclusion that full payment is a requirement for

jurisdiction.

Rather, as this Court recently reaffirmed and

elucidated, the plain, ordinary understanding of the

text must apply:

This Court normally interprets a statute

in accord with the ordinary public

meaning of its terms at the time of its

enactment. After all, only the words on

the page constitute the law adopted by

Congress and approved by the President.

If judges could add to, remodel, update,

or detract from old statutory terms

inspired only by extratextual sources and

our own imaginations, we would risk

amending statutes outside the legislative

process reserved for the people’s

representatives. And we would deny the

people the right to continue relying on

the original meaning of the law they have

counted on to settle their rights and

obligations.

Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731,

1738 (2020).

In contrast, by holding that the “the statutory

language is not absolutely controlling” (Flora, 362

U.S. at 151), Flora violated the foundational rule that

12

“[a] court’s job is to interpret the words of a statute

consistent with the words’ ordinary meaning at the

time Congress enacted the statute.” Wisconsin Cent.

Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018)

(cleaned up). Upholding this understanding of the law

as written is paramount:

Written laws are meant to be understood

and lived by. If a fog of uncertainty

surrounded them, if their meaning could

shift with the latest judicial whim, the

point of reducing them to writing would

be lost. That is why it’s a “fundamental

canon of statutory construction” that

words generally should be interpreted as

taking their ordinary, contemporary,

common meaning ... at the time Congress

enacted the statute. Congress alone has

the institutional competence, democratic

legitimacy, and (most importantly)

constitutional authority to revise

statutes in light of new social problems

and preferences. Until it exercises that

power, the people may rely on the

original meaning of the written law.

Id. (cleaned up).

Another recent decision of this Court is

illuminating; in Food Mktg. Inst. v. Argus Leader

Media, 139 S. Ct. 2356 (2019), this Court considered

statutory exemptions,

that the disclosure requirements of the

Freedom of Information Act do “not

13

apply” to “confidential” private-sector

“commercial or financial information” in

the government’s possession. But when

does information provided to a federal

agency qualify as “confidential”? The

Food Marketing Institute says it’s

enough if the owner keeps the

information

private

rather

than

releasing it publicly. The government

suggests that an agency’s promise to

keep information from disclosure may

also suffice to render it confidential. But

the courts below imposed a different

requirement

yet,

holding

that

information can never be deemed

confidential unless disclosing it is likely

to result in “substantial competitive

harm” to the business that provided it.

Id. at 2360–61.

This Court explained the longstanding

statutory construction issue that led to reversal, and

abrogation of decisions of courts of appeals, finding the

“‘competitive harm’ requirement inconsistent with the

terms of the statute,” id. at 2361:

So

where

did

the

“substantial

competitive harm” requirement come

from? In 1974, the D. C. Circuit declared

that, in addition to the requirements

actually set forth in Exemption 4, a

“court must also be satisfied that nondisclosure is justified by the legislative

14

purpose which underlies the exemption.”

Then, after a selective tour through the

legislative history, the court concluded

that “commercial or financial matter is

‘confidential’ [only] if disclosure of the

information is likely ... (1) to impair the

Government’s ability to obtain necessary

information in the future; or (2) to cause

substantial harm to the competitive

position of the person from whom the

information was obtained.” Without

much independent analysis, a number of

courts of appeals eventually fell in line

and adopted variants of the National

Parks test.

Id. at 2364 (citations omitted, quoting Nat’l Parks &

Conservation Ass’n v. Morton, 498 F.2d 765, 767 (D.C.

Cir. 1974), abrogated by Food Mktg. Inst., supra).

Similar to National Parks, Flora rejected the

plain meaning of Section 1346(a) in favor of its

inference drawn from external sources to craft an

extra-textual full payment requirement. But this

Court recently, frequently, and forcefully has rejected

that approach as improper:

We cannot approve such a casual

disregard of the rules of statutory

interpretation.

In

statutory

interpretation disputes, a court’s proper

starting point lies in a careful

examination of the ordinary meaning

and structure of the law itself. Where, as

15

here, that examination yields a clear

answer, judges must stop. Even those of

us who sometimes consult legislative

history will never allow it to be used to

“muddy” the meaning of “clear statutory

language.”

Id. at 2364 (citing Schindler Elevator Corp. v. United

States ex rel. Kirk, 563 U.S. 401, 407 (2011); Hughes

Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999); and

quoting Milner v. Dep’t of Navy, 562 U.S. 562, 572

(2011)).

Indeed, this Court explained that “National

Parks’ contrary approach is a relic from a ‘bygone era

of statutory construction.’” Id. (citation omitted). So

too is the Flora rule. Attempting to divine legislative

intentions by consulting external sources more freely,

rather than determining the plain meaning of

statutorily enacted laws – as was a common practice

during that bygone era – is entirely unreliable.

The late Justice Scalia pertinently provided the

following:

The greatest defect of legislative history

is its illegitimacy. We are governed by

laws, not by the intentions of legislators.

As the Court said in 1844: “The law as it

passed is the will of the majority of both

houses, and the only mode in which that

will is spoken is in the act itself....”

Aldridge v. Williams, 3 How. 9, 24, 11

L.Ed. 469 (emphasis added). But not the

least of the defects of legislative history

16

is its indeterminacy. If one were to

search for an interpretive technique that,

on the whole, was more likely to confuse

than to clarify, one could hardly find a

more

promising

candidate

than

legislative history. And the present case

nicely proves that point.

Judge Harold Leventhal used to describe

the use of legislative history as the

equivalent of entering a crowded cocktail

party and looking over the heads of the

guests for one’s friends.

Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia,

J., concurring).

This Court pointedly observed that “[n]ot only

did National Parks inappropriately resort to

legislative history before consulting the statute’s text

and structure, once it did so it went even further

astray.” Food Mktg. Inst., 139 S. Ct. at 2364. And that

is precisely what Flora did as well.

This Court nullified the National Parks test and

articulated a proper standard consistent with the

plain statutory language: “[a]t least where commercial

or financial information is both customarily and

actually treated as private by its owner and provided

to the government under an assurance of privacy, the

information is ‘confidential’ within the meaning of

Exemption 4.” Id. at 2366. And this Court should

nullify Flora as well. The Flora rule is a relic from a

bygone era that suffers from the same defect as the

National Parks test. Id. at 2364. Accordingly, this

17

Court should grant the petition to correct the Flora

rule’s extra-statutory addition to Section 1346(a) by

construing Section 1346(a) based on the statutory text

itself. The preeminent canon of statutory construction,

BedRoc Ltd., 541 U.S. at 183, and this Court’s extant

precedent require no less.

B.

The Flora Rule is Inconsistent with

the Overall Statutory Scheme of the

Internal Revenue Code.

The statutory language leaves no doubt that

partial payment (as opposed to exclusively “full

payment”) is sufficient to confer jurisdiction over

“[a]ny civil action against the United States for the

recovery of any internal-revenue tax alleged to have

been erroneously or illegally assessed or collected,” 28

U.S.C. § 1346(a) because there simply are no “English

words more clearly expressive of the grant of

jurisdiction to Federal District Courts over such

cases[.]” Flora, 362 U.S. at 197 (Whitaker, J.,

dissenting). Moreover, Flora itself noted that the

legislative “history is barren of any clue to

congressional intent.” Id. at 151.

Furthermore, it is a fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to their

place in the overall statutory scheme[,]” W. Virginia v.

Env’t Prot. Agency, 142 S. Ct. 2587, 2607 (2022)

(quoting Davis v. Michigan Dept. of Treasury, 489 U.S.

803, 809 (1989)). And, within the “overall statutory

scheme” of the Internal Revenue Code, there is no

indication that full prepayment is a jurisdictional

18

prerequisite to a refund action. Indeed, the Flora rule

is inconsistent with the “overall statutory scheme” of

the Internal Revenue Code, the goal of which is not to

collect a windfall, but rather to collect what is properly

taxable.

That goal is articulated by 26 U.S.C.

§ 7803(a)(3)(C) as “the right to pay no more than the

correct amount of tax[.]” And the exercise of that right,

by its very nature, cannot be contingent on first paying

the incorrect amount of tax. This reality is brought

into sharper focus by the well-established

presumption that the IRS’s adjustments are correct,

with the burden to prove otherwise being upon the

taxpayer. See Welch v. Helvering, 290 U.S. 111, 115

(1933). Thus, in instances where the IRS incorrectly

asserts a liability, the amount of which – whether one

hundred or one million dollars – exceeds the correct

amount of tax, the IRS should not be able to require

the taxpayer to pay the entire incorrect excess amount

as a perquisite for exercising his “right to pay no more

than the correct amount of tax[.]” 26 U.S.C.

§ 7803(a)(3)(C); accord 26 U.S.C. § 7803(a)(3)(J)

(codifying “the right to a fair and just tax system.”).

This point was emphasized by Justice

Whitaker, who thoroughly canvased the history of tax

refund actions, when he concluded that the purpose

behind Section 1346 was remedial, to afford taxpayers

a meaningful recourse, as opposed to the effects of

prior laws that “created the intolerable condition of

denying to taxpayers any remedy whatever in the

District Courts to recover amounts illegally assessed

and collected[.]” Flora, 362 U.S. at 186 (Whitaker, J.,

19

dissenting). And Justice Whitaker observed that

allowing such refund actions is fully consistent with

the “overall statutory scheme” of the Internal Revenue

Code:

[I]t is undisputed that the institution of

a suit for refund of a partial payment of

an assessment does not stay the

Commissioner’s power of collection by

distraint or otherwise, and a taxpayer

with the property or means to pay the

balance of the assessment cannot avoid

its payment, except through the

Commissioner’s acquiescence and failure

to exercise his power of distraint.

Id. at 193 (Whitaker, J., dissenting) (footnotes

omitted); see also id. at 193 n. 15 (referencing the

prohibition on “restraining the assessment or

collection of any tax” other than explicitly listed

exceptions. 26 U.S.C. § 7421(a)). Justice Whitaker also

pointedly observed the inequitable (and unintended)

effects that the Flora rule would impose upon

taxpayers who could not immediately pay the full,

illegally assessed or collected amount. For instance,

“taxpayers who pay assessments in installments

would be without remedy to recover early installments

that were wrongfully collected should the period of

limitations run before the last installment is paid.”

Flora, 362 U.S. at 195–97 (Whitaker, J., dissenting).

Justice Whitaker’s prescience regarding the

disparate adverse effect of the Flora rule on taxpayers

who most need the benefit of Section 1346(a) – those

20

who cannot afford to fully pay illegally assessed or

collected taxes – was, in effect, the basis of the

legislative recommendation that the National

Taxpayer Advocate (the “NTA”) proposed in the

National Taxpayer Advocate Annual Report to

Congress 2018 (“NTA 2018”) – “FIX THE FLORA

RULE: Give Taxpayers Who Cannot Pay the Same

Access to Judicial Review as Those Who Can[.]” 5 See

also the National Taxpayer Advocate Annual Report

to Congress 2022 (“NTA 2022”). 6

The NTA noted that the Flora rule adversely

affects the following taxpayer rights that are codified

in the Taxpayer Bill of Rights under 26 U.S.C.

§ 7803(a)(3):

•

The Right to Quality Service

NTA 2018 at 364, available at

https://www.taxpayeradvocate.irs.gov/wpcontent/uploads/2020/07/ARC18_Volume1.pdf

(last accessed Feb. 17, 2023).

6 “In Flora v. United States, however, the U.S. Supreme Court

held that, with limited exceptions, a taxpayer must have ‘fully

paid’ the assessment (called the ‘full payment rule’) before suing

in these courts. The full payment rule impacts whether taxpayers

have the financial means to file suit and/or hire an attorney to

represent them. Equal access to justice should allow taxpayers

who cannot pay what the IRS says they owe to challenge an

adverse determination and have the same opportunities as

wealthier taxpayers who can pay.” NTA 2022 at 190 (footnotes

omitted), available at

https://www.taxpayeradvocate.irs.gov/wpcontent/uploads/2023/02/2022-ARC_FullBook_02022023.pdf

(last accessed Feb. 17, 2023).

5

21

•

The Right to Pay No More Than the

Correct Amount of Tax

•

The Right to Challenge the IRS’s Position

and Be Heard

•

The Right to Appeal an IRS Decision in

an Independent Forum

•

The Right to Privacy

•

The Right to a Fair and Just Tax System

NTA 2018 at 364.

“It is clear, however, that the full payment rule

gives the poor who cannot pay a disputed liability less

access to judicial review than wealthier taxpayers who

can” (id.), undoubtedly contrary to the legislative

intent behind enactment of Section 1346(a), which was

for a “beneficent purpose[.]” Flora, 362 U.S. at 178

(Whitaker, J., dissenting).

Indeed, these effects are not merely surprises

that have only come to light in hindsight, but were

predictable at the time Flora was decided:

Where a taxpayer has paid, upon a

normal or a ‘jeopardy’ assessment, either

voluntarily or under compulsion of

distraint, a part only of an illegal

assessment and is unable to pay the

balance within the two-year period of

limitations, he would be deprived of any

means of establishing the invalidity of

22

the assessment and of recovering the

amount illegally collected from him,

unless it be held, as it seems to me

Congress plainly provided in [Section]

1346(a), that full payment is not a

condition upon the jurisdiction of District

Courts to entertain suits for refund.

Id. at 195 (Whitaker, J., dissenting).

At bottom, the language of Section 1346(a)

could not more clearly establish jurisdiction without

the condition or prerequisite of full payment. Id. at 197

(Whitaker, J., dissenting). No legislative history even

remotely suggests otherwise (id. at 151) and partial

payment jurisdiction is entirely consistent with the

context and scheme of the Internal Revenue Code “as

no contradiction or absurdity is created by so doing[.]”

Id. at 197 (Whitaker, J., dissenting). This Court has

the exclusive opportunity to heed Judge Whitaker’s

message by correcting the mistake that was made in

Flora and by conforming the interpretation of Section

1346(a) to the language of the law:

I think it is our duty to rely upon the

words of [Section] 1346(a) rather than

upon unarticulated implications or

exceptions. Particularly is this so in

dealing with legislation in an area such

as internal revenue, where countless

rules and exceptions are the subjects of

23

frequent

revisions

refinements.

and

precise

Id. (Whitaker, J., dissenting).

Accordingly, the petition should be granted.

II.

THIS CASE PRESENTS A RECURRING QUESTION

OF NATIONAL IMPORTANCE THAT REQUIRES

COURT’S CORRECTION OF FLORA TO

PROPERLY APPLY OUR INTERNAL REVENUE

LAWS.

THIS

Justice Whitaker’s concern was not merely

hypothetical, nor was it based upon rare or isolated

occurrences because “not only will the words of

[Section] 1346(a) be disregarded, but great hardships

upon taxpayers will result, and such an intention

should not lightly be implied.” Id. at 195 (Whitaker,

J., dissenting). His concern proved to be absolutely

correct: the extent of the courts’ jurisdiction over tax

refund actions “is of considerable importance” (id. at

147) and goes to the heart of how the internal revenue

system operates on a daily basis throughout the

country.

Indeed, the NTA provided real-world examples

of such situations:

Example 1: The District Court and

the Court of Federal Claims Cannot

Review Claims from Those Who

Cannot Fully Pay

24

In 2010, the IRS audited Ms. Jane Doe’s

2007 income tax return and issued a

notice of deficiency, proposing to disallow

her Earned Income Tax Credit (EITC)

because she had no bank account or

accounting system to substantiate her

earned income.7 If given an opportunity,

Ms. Doe could substantiate her income in

court using the testimony of customers.

Because she did not understand the

notice of deficiency, Ms. Doe missed the

deadline for filing a petition with the Tax

Court.8 Under the full payment rule, she

cannot file suit in a district court or in the

Court of Federal Claims before paying in

full. Because she cannot afford to pay in

full, she cannot get her case reviewed,

and the IRS will attempt to collect the

inaccurate deficiency.

NTA 2018 at 365 (footnote omitted). These situations

occur frequently. 7 And this is but one of many

examples of how the Flora rule erodes access to

judicial review, especially for non-wealthy taxpayers,

who necessarily suffer the negative impacts more

severely.

And, as Justice Whitaker profoundly observed,

it is particularly important to adhere to the law as

written when “dealing with legislation in an area such

as internal revenue, where countless rules and

exceptions are the subjects of frequent revisions and

7 See id. at 365 n. 8 (“[l]ow income taxpayers can easily miss filing

deadlines.”).

25

precise refinements.” Flora, 362 U.S. at 197

(Whitaker, J., dissenting). Compounding the

obviously

unintended

consequences

that

disproportionally affect poorer taxpayers is the effect

of Flora on a continually expanding category of

internal revenue penalties.

Because the IRS may assess certain

penalties (called “assessable penalties”)

before

giving

the

taxpayer

an

opportunity to petition the Tax Court to

review them, the rule also closes the

courthouse door to those facing

assessable penalties that are too large to

pay—precisely the penalties that are

most damaging if they are wrongly

assessed.

NTA 2018 at 364. And Justice Whitaker’s warnings

have come to pass:

Moreover, the problems posed by

assessable penalties have grown. When

Flora I was decided, there were only four

assessable penalties, but today there are

over 50. This erosion of judicial oversight

is particularly inconsistent with the

taxpayer’s right to appeal an IRS

decision in an independent forum and

right to a fair and just tax system.

Id. at 365 (footnote omitted, emphasis in original). See

also id. at 365 n. 6 (“Compare Internal Revenue Code

of 1954, Pub. L. No. 83-591, 68 Stat. 730 (1954)

(reflecting three assessable penalties, codified at IRC

26

§§ 6672-6674), as amended by Pub. L. No. 84-466, § 3,

70 Stat. 90 (1956) (enacting a fourth, codified at IRC

§ 6675), with IRC §§ 6671-6725 (more than 50 presentday assessable penalties).”). And the increasing

frequency of Flora impacting taxpayers shows no sign

of abating anytime soon. See NTA 2022 at 190

(discussing refund litigation as one of the most

litigated issues).

Given the dramatic, wide-ranging, and frequent

negative effects of the Flora rule, the NTA’s primary

recommendation to Congress was that “[a] simple

solution would be to repeal the full payment rule.”

NTA 2018 at 367. Alternatively, if Congress desired a

more tailored approach, the NTA recommended

amending Section 1346(a) to specify only limited

situations in which full payment is a prerequisite to

jurisdiction or expanding the jurisdiction of the Tax

Court to encompass various circumstances in which

the Flora rule precludes review. Id. Of course, the

NTA is tasked with only proposing legislative

recommendations; however, it is clear that the NTA

views Flora as being incorrect as a matter of law as

well as a matter of policy.

Thus, while the NTA nobly suggests a

Congressional

remedy

through

legislative

amendment, this Court can provide a more

meaningful remedy. This Court can remedy not only

the unintended negative effects of the Flora rule but

also the inconsistency between Flora and the Court’s

precedents, by grounding the statutory construction of

Section 1346(a) in the statutory text and by thus

providing confidence that “the people may rely on the

27

original meaning of the written law.” Wisconsin Cent.

Ltd., 138 S. Ct. at 2070.

Resultingly, this Court should grant the

petition.

III.

THIS CASE PRESENTS A GOOD VEHICLE.

The nature and posture of this case makes it an

excellent vehicle for this Court to consider the

questions presented, namely: 1) Whether Flora was

wrong as a matter of law, and if so, 2), whether Flora

must be overruled.

Indeed, this case squarely presents for this

Court’s consideration the validity of Flora,

unburdened by any other issues. The question of

whether, under the proper statutory construction,

Section 1346(a) imposes a full-payment requirement

to establish district court jurisdiction is the only

question at issue. All other issues that may be

required for the ultimate resolution of this case will be

properly considered in the first instance by the trial

court on remand.

Accordingly, this case presents this Court with

the ideal opportunity to reconsider Flora and the

statutory construction of Section 1346(a) in

accordance with its plethora of well-elaborated recent

precedents.

CONCLUSION

For the foregoing reasons, the petition should

be granted.

28

Respectfully submitted,

JOSEPH A. DIRUZZO, III

Counsel of Record

DANIEL M. LADER

DIRUZZO & COMPANY

401 East Las Olas Blvd., Suite 1400

Ft. Lauderdale, FL 33301

954.615.1676 (o)

954.827.0340 (f)

jd@diruzzolaw.com

dl@diruzzolaw.com

Counsel for Petitioner