# Opposition Brief — Miller v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2267%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1094 ## Text No. 97-1384 = In the Supreme Court of the United States OCTOBER TERM, 1997 A. EUGENE MILLER, PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION SETH P. WAXMAN Solicitor General LORETTA C. ARGRETT Assistant Attorney General RICHARD FARBER PAULA K. SPECK Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 QUESTION PRESENTED Whether the notice of administrative claim disal- lowance transmitted to petitioner commenced the running of the statute of limitations on petitioner’s judicial refund suit. (I) TABLE OF CONTENTS Page REE “a l _ SESE a ee 1 I 2 NTE ne a 3 NII diiachoretoedbneesctehscalitilsddccdeniccectisiewusndessoseereciess ce 6 NE - sdassitemveaiilinihcatnapieisliveekiseseesossncoophadegoidc. ccs, 12 TABLE OF AUTHORITIES Cases: Block-Southland Sportswear, Co. v. United States, 73-1 U.S. Tax Cas. (CCH) 4 9230 (E.D.N.C. Nov. 24, 1972), aff'd, 480 F.2d 921 (4th Cir. 1973) ........... 9, 10 Charlson Realty Co. v. United States, 384 F.2d 434 ERPS SSRIS Rel elec 10 Clinton Trust Co. v. United States, 52 F. Supp. I 11 First Alabama Bank v. United States, 981 F.2d I 11 L&HCo. v. United States, 963 F.2d 949 (7th Cir. go, LENE SESS ESTER Ser EN OHI ROTTED 10 Miller v. Insurance Inst. for Highway Safety and the Prudential Ins. Co., No. 92-943-A (E.D. Va. I ia a 5 Schmitt v. Kavanagh, 91 F. Supp. 659 (E.D. I a 10 Smith v. United States, 478 F.2d 398 (5th Cir. LSE EES SSCS TS le Oe ne ee S Soriano v. United States, 352 U.S. 270 (1957) ........ 8 Union Commerce Bank v. United States, 638 F.2d 962 (6th Cir. 1981), aff’g 463 F. Supp. 842 I in 10 United States v. Dalm, 494 U.S. 596 (1990) ............ 8 W.A. Schemmer Limestone Quarry, Inc. v. United States, 240 F. Supp. 356 (S.D. Iowa 1964) ............... 10 IV Statutes: Page Employee Retirement Income Security Act of 1974, BP SEs eee UNE sa casscntisececsariteavivchicintoessidasecats 5 Internal Revenue Code (26 U.S.C.): MEE f the court of appeals is correct and does net conflict with any decision of this Court or any other court of appeals. Further review is there- fore not warranted. 1. Petitioner’s principal argument is that the January 1992 notice of claim disallowance was not suf- ficient to start the running of the Section 6532 limita- tions period for filing a refund suit because it did not expressly reflect that the IRS had considered all of the grounds for refund contained in petitioner’s re- fund claim (Pet. 10). That contention is both factually and legally incorrect. a. The argument is factually in error because, as the court of appeals noted, the notice “included a brief explanation of the reasons for [the] disallowance” (Pet. App. 4). After clearly advising petitioner that his claim for refund was “disallowed,” the notice ex- plained that it was disallowed because the TSA did not qualify for the “Form 4972 [ ] special treatment” for income averaging and because “a rollover from a TSA to an IRA must be made within the 60 day period” (Pet. App. 35). The notice thus expressly responded to the contentions of petitioner’s refund claim that no 60-day requirement for rollover of a TSA applied and that, if one applied, the IRS should exercise discre- tion to excuse it in his case. See page 4, supra. As the court of appeals explained, this succinct and clear denial of the refund claim was “adequate notice” to commence the running of the statute of limitations (Pet. App. 4, 35-36). Indeed, the notice was not merely “adequate” it was crystal clear—for it expressly ad- vised petitioner (who was by then represented by counsel) that the period within which a refund suit could be brought was “two years from the mailing date of this letter” (id. at 35 (emphasis added)). b. Even if it were assumed that the explanation in the January 1992 notice for the disallowance of peti- tioner’s claim was incomplete, that would not affect the efficacy of the notice. The right to maintain a refund suit under 26 U.S.C. 7422 is expressly condi- tioned on the taxpayer’s compliance with 26 U.S.C. 6532(a).2 The two-year limitations period for filing a refund suit provided in 26 U.S.C. 6532(a) commences upon the mailing of a notice of disallowance. 26 U.S.C. 6532(a)(1). There is no requirement in the Internal Revenue Code or in the regulations that the notice of disallowance contain any explanation what- ever of the reasons for disallowance. As long as the notice that the refund claim has been disallowed properly identifies the tax for which a refund is sought and clearly advises the taxpayer that the claim for a refund of that tax has been disallowed, it is effective to trigger the running of the two-year limi- tations period. See, e.g., Smith v. United States, 478 F.2d 398, 399-400 (5th Cir. 1973). A taxpayer’s right to bring a refund suit is not conditioned upon receiving any particular form of denial of its claim for refund. Indeed, a taxpayer may file a refund suit if the IRS has not even acted on the claim for refund if six months has passed from the date the claim was filed. 26 U.S.C. 6532(a)(1). Tax- payer refund suits are therefore frequently filed be- fore the IRS has taken any action whatever on the claim for refund.‘ The obvious purpose of the notice of disallowance is to advise the taxpayer formally that the IRS has disallowed his claim for refund and that, conse- 3 The Court has emphasized that these conditions on the waiver of sovereign immunity must be strictly construed in favor of the United States. United States v. Dalm, 494 U.S. 596, 608 (1990); Soriano v. United States, 352 U.S. 270, 276 (1957). 4 Petitioner is thus clearly wrong in asserting (Pet. 12-13) that Congress intended that the IRS would always pass on the merits of a taxpayer’s refund claim before the claim became the subject of a refund suit. quently, he must bring suit within two years if he wishes to continue to pursue his claim. The notice of disallowance sent to petitioner in January 1992 could not have been clearer in informing petitioner that his claim for refund had been disallowed, for it states (Pet. App. 35): This letter is your legal notice that your claim is disallowed. We cannot allow your claim(s) for re- fund or credit for the period(s) shown above. The notice also expressly advised petitioner of his right to sue and of the fact that he was required to sue “within two years from the mailing date of this letter” (ibid.). The notice was therefore effective to trigger the running of the two-year limitations period. Because petitioner’s refund suit was filed four years after the notice of claim disallowance was mailed to him, the courts below correctly concluded that it is barred by the statute of limitations. ec. The cases on which petitioner seeks to rely (Pet. 16-19) are inapposite. In Block-Southland Sportswear, Co. v. United States, 73-1 U.S. Tax Cas. (CCH) J 9230 (E.D.N.C. Nov. 24, 1972), aff’d per curiam, 480 F.2d 921 (4th Cir. 1973), the taxpayer argued that preliminary audit analysis from the Service—known as a “thirty-day letter”’—consti- tuted a notice of disallowance of a refund claim and that the taxpayer should therefore be permitted to file ° A “thirty-day letter” is prepared by an IRS examiner. It contains the preliminary results of the examination of a con- tested return and conveys an invitation to the taxpayer either to accept the results of the examination or (i) provide addi- tional information to the Service or (ii) request a conference with the Service to discuss the examination. See M. Saltzman, IRS Practice and Procedure ¥ 8.08 (2d ed. 1991). 10 a refund suit before the six-month period provided in 26 U.S.C. 6532(a)(1) expired. The court concluded in Block-Southland that such preliminary audit correspondence does not constitute a notice of disallowance. 73-1 U.S. Tax Cas. (CCH) at 80,419. In the present case, however, the document mailed to petitioner in January 1992 was plainly not a preliminary thirty-day letter issued as part of an audit examination (see note 5, supra). Instead, as the courts below correctly held (Pet. App. 4, 32), it was a formal notice of disallowance that advised petitioner of the rejection of his refund claim. The «ther cases cited by petitioner are similarly irrelevant. In Union Commerce Bank v. United States, 638 F.2d 962 (6th Cir. 1981), aff’g 463 F. Supp. 842 (N.D. Ohio 1978), a taxpayer claimed that the notice of disallowance sent to it was invalid because its refund claim had not been in compliance with Treasury regulations. The Sixth Circuit held that any defects in the refund claim did not affect the validity of the notice of disallowance and that the limitations period began with the mailing of that notice. 638 F.2d at 963. In Schmitt v. Kavanagh, 91 F.. Supp. 659, 661-663 (E.D. Mich. 1950), the taxpayer’s refund claim was intertwined with a pending Tax Court case involving a related taxpayer, and the pur- ported notice of disallowance stated on its face that the IRS would not consider the claim until the Tax Court case was resolved. Similarly, L & H Co. v. United States, 963 F.2d 949, 951 (7th Cir. 1992); Charlson Realty Co. v. United States, 384 F.2d 434, 439-440 (Ct. Cl. 1967); and W. A. Schemmer Lime- stone Quarry, Inc. v. United States, 240 F. Supp. 356, 358 (S.D. Iowa 1964), do not support petitioner, be- cause they hold only that a second timely filed refund 11 claim that asserts a new ground for a refund begins the claim-disallowance process anew. Petitioner does not allege that he filed a second refund claim assert- ing new grounds. Finally, Clinton Trust Co. v. United States, 52 F. Supp. 671, 679 (Ct. Cl. 1943), does not stand, as petitioner asserts (Pet. 18-19), for the proposition that a notice of disallowance must ex- pressly disallow all of the grounds for refund. Instead, Clinton held that, even when the IRS gives an erroneous reason for disallowance, the notice of disallowance is still effective to commence the run- ning of the statute of limitations. 52 F. Supp. at 679. 2. Petitioner incorrectly asserts (Pet. 19-23) that the decision in this case conflicts with the decision of the Eleventh Circuit in First Alabama Bank v. United States, 981 F.2d 1226, 1230 n.5 (1993). In First Alabama, after the IRS had issued a notice of dis- allowance of a refund claim, an IRS employee had informed the taxpayers orally that the statute of limitations was not running. The Service thereafter issued a second notice of disallowance of the claim. 981 F.2d at 1227-1228. Notwithstanding the asserted confusion resulting from this series of events, the court of appeals concluded that there was insufficient evidence that the first notice of disallowance had been withdrawn and therefore upheld the dismissal of the taxpayers’ suit as untimely. /d. at 1230. The court suggested in First Alabama that, if letters or other communications sent to a taxpayer after the formal notice of disallowance cause the tax- payer to be reasonably confused as to whether the notice has been withdrawn, the two-year limitations period for filing suit would not commence. 981 F.2d at 1230. In the present case, however, there were no communications between petitioner and the IRS after a 12 the notice of claim disallowance that provided any basis for petitioner to conclude that the IRS had withdrawn the notice of claim disallowance. The contention that the decision in this case conflicts with First Alabama is thus plainly incorrect. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Solicitor General LORETTA C. ARGRETT Assistant Attorney General RICHARD FARBER PAULA K. SPECK Attorneys MARCH 1998 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2267%3A2. Public record. Not legal advice.