222 F.3d 93 (2nd Cir.

2000)

EMANUEL WEISBART, PLAINTIFF-APPELLANT,

v.
UNITED STATES DEPARTMENT OF TREASURY AND
INTERNAL REVENUE SERVICE, DEFENDANTSAPPELLEES.
Docket No. 99-6134
August Term 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT
Argued: June 22, 2000
Decided July 28, 2000

Emanuel Weisbart appeals from an order of the United States District

Court for the Eastern District of New York (Sifton, J.), granting summary
judgment to the United States and the Internal Revenue Service (the "IRS"
or the "Service").
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
Emanuel Weisbart, East Hampton, New York, Plaintiff-Appellant, pro se.
Kenneth W. Rosenberg, Attorney, Tax Division, Department of Justice,
(Loretta C. Argrett, Assistant Attorney General, Richard Farber, Attorney,
Tax Division, Department of Justice, Washington, D.C., on the brief;
Loretta E. Lynch, United States Attorney for the Eastern District of New
York, of counsel), for Defendants-Appellees.
Before: Miner, McLAUGHLIN, Straub, Circuit Judges.

McLAUGHLIN, Circuit Judge

1

Judge Learned Hand once described the Tax Code as a "fantastic labyrinth[]"
whose words "merely dance before my eyes in a meaningless procession: crossreference to cross-reference, exception upon exception...." Learned Hand,

Thomas Walter Swan, 57 Yale L.J. 167, 169 (1947). Like Theseus of old we
are compelled to enter this labyrinth - but without his ball of thread.
2

Emanuel Weisbart's 1991 income tax return was due on April 15, 1992, but he
obtained an automatic extension until August 17, 1992. Despite the extension,
Weisbart did not file his return by the August 1992 deadline. Tarrying three
years, he mailed his 1991 return to the IRS on August 17, 1995. The tax return
was submitted on the customary Form 1040 and included a refund claim for
$4,867 from the $12,477 in taxes that had been previously withheld from
Weisbart's 1991 wages. The IRS received the return on August 21, 1995.

The IRS denied Weisbart's refund claim, taking the position that it had been
filed too late. On August 16, 1997, Weisbart sent the IRS a letter reasserting his
original refund claim for $4,867, and, indeed, claiming for the first time an
additional $700 refund. (According to Weisbart, the additional $700
represented a refund due for real estate tax deductions that he omitted from his
1991 return). The IRS denied both of Weisbart's claims.

Weisbart brought an administrative appeal, which was also denied. Then, in

October 1997, Weisbart filed a pro se refund action in the United States District
Court for the Eastern District of New York (Sifton, J.). He sought both the
original $4,867 refund, plus the $700. The IRS moved for summary judgment,
arguing that Weisbart's refund claims were barred by 26 U.S.C. 6511(b)(2)
(A). The district court agreed and granted the Service's motion. Weisbart now
appeals.

DISCUSSION
A. Jurisdiction
5

As a threshold matter, we must consider whether the district court properly

exercised jurisdiction over Weisbart's refund claim.

Although ordinarily immune from suit as sovereign, the United States has
broadly consented to being sued by taxpayers in the district courts for the
refund of "any sum [of federal tax] alleged to have been excessive or in any
manner wrongfully collected under the internal-revenue laws." 28 U.S.C.
1346; see United States v. Forma, 42 F.3d 759, 763 (2d Cir. 1994). There are,
however, strict conditions attached to that consent. See Forma, 42 F.3d at 763;
United States v. Dalm, 494 U.S. 596, 601-01 (1990); Rosenbluth Trading, Inc.
v. United States, 736 F.2d 43, 47 (2d Cir. 1984).

The specific jurisdictional limitation at issue here is 26 U.S.C. 6511(a). That

subsection establishes three alternative filing deadlines for refund claims; one
such deadline gives the taxpayer 3 years to file a refund claim, while the others
give 2 years. Section 6511(a) provides that a refund claim is timely if filed:

[1] within 3 years from the time the return was filed or [2] 2 years from the
time the tax was paid, whichever of such periods expires the later, or [3] if no
return was filed by the taxpayer, within 2 years from the time the tax was paid.

Here, it is undisputed that Weisbart did not file his refund claim within "2 years
from the time [his] tax was paid," so both the second and third deadlines are
unhelpful to him. Id. Nevertheless, Weisbart did file a tax return for the 1991
year and also filed his refund claim "within 3 years from the time [that] return
was filed" as seemingly required by section 6511(a)'s 3-year deadline. Id. The
sticking point is that Weisbart's 1991 tax return was untimely filed. And in
Miller v. United States, 38 F.3d 473, 475 (9th Cir. 1994), the Ninth Circuit
squarely held that to satisfy section 6511(a)'s 3-year deadline for a refund, a
taxpayer must have timely filed a tax return.

10

Surprisingly, in its brief on this appeal, the IRS requests that we decline to
follow Miller. The Service concedes that section 6511(a) gave Weisbart 3 years
from the filing of his tax return to file his refund claim, even though the return
itself was untimely. The IRS cites its 1976 Revenue Ruling on this subject,
which instructs that to be timely under section 6511(a), a refund claim need
only be filed within 3 years of the filing of a tax return, irrespective of the
timeliness of that return. See Rev. Rul. 76-511, 1976-2 C.B. 428. These
concessions, however, do not relieve us of our independent obligation to
determine whether the jurisdictional requirements of section 6511(a) are met.
See Rosenbluth Trading, 736 F.2d at 47. After reviewing the pertinent
authorities, we are satisfied that those requirements have indeed been met.

11

As already noted, Miller held that in order to satisfy the 3-year deadline
imposed by section 6511(a), a taxpayer must have timely filed a tax return. See
id., 38 F.3d at 475. The court reasoned that such a reading was compelled by
"the statutory insistence that a claim be filed within two years after the payment
of the taxes `if no return was filed by the taxpayer.'" Id. (quoting 26 U.S.C.
6511(a)). Equating the failure to file a timely return to the filing of no return,
the Miller court concluded that in the absence of a timely return, it was
necessary for the taxpayer to satisfy the 2-years-from-payment deadline
established by section 6511(a). See id. Acceding to the IRS's request, we
decline to follow Miller.

12

Before 1958, a taxpayer clearly had to timely file a tax return to take advantage
of the 3-year deadline of section 6511(a). See Technical Amendments Act of
1958, Pub. L. No. 85-866, 82(a), 72 Stat. 1606, 1663. In contrast, however,
the IRS enjoyed 3 years to audit a return, and this 3 years began to run "from
the date the return was actually filed, whether or not filed when it was due." S.
Rep. No. 85-1983 (1958) and H.R. Conf. Rep. No. 85-2632 (1958), reprinted in
1958 U.S.C.C.A.N. 4791, 4887 (emphasis added). Congress leveled the playing
field in 1958, by jettisoning the requirement that a return had to be filed on time
as a prerequisite to recovering a refund in the ensuing 3 years. See id. As a
result, contrary to the Miller court's holding, a timely filed return is no longer
required in order to satisfy the 3-year deadline of section 6511(a).

13

Almost all the courts addressing this issue have accepted this proposition. See
Webb v. United States, 66 F.3d 691, 700 (4th Cir. 1995) (quoting Oropallo v.
United States, 994 F.2d 25, 30 n.7, 31 (1st Cir. 1993)); Curry v. United States,
774 F.2d 852, 855 (7th Cir. 1985); Video Training Source, Inc. v. United
States, 991 F. Supp. 1256, 1260 (D. Colo. 1998); Porter v. United States, 919 F.
Supp. 927, 931 (E.D. Va. 1996); Sy v. United States, 968 F. Supp. 345, 347
(E.D. Mich. 1997); Mills v. United States, 805 F. Supp. 448, 450 (E.D. Tex.
1992).

14

There is an anomaly here, as the First Circuit has noted: reading section 6511(a)
to dispense with the requirement of a timely return renders its time limitations
largely "illusory." Oropallo, 994 F.2d at 30. Indeed, so read, section 6511(a)
would allow "a taxpayer to file a tax return 40 years late and still have 3
additional years in which to file a claim for refund." Id. (internal quotation
marks and citation omitted). Admittedly, this is counter-intuitive. Nevertheless,
this construction makes sense: a central aim of section 6511(a) is not to bar stale
refund claims, but to ensure that a taxpayer give the IRS notice of such claims
before suing in federal court. Cf. Ahmed v. United States, 147 F.3d 791, 796
(8th Cir. 1998) (discussing 26 U.S.C. 7422); Beckwith Realty, Inc. v. United
States, 896 F.2d 860, 862-3 (4th Cir. 1990) (same). This gives the IRS in the
first instance a chance to correct claimed errors and, if disagreement persists, to
limit the litigation to the issues which have been re-examined by the Service
and which it is prepared to defend. See Beckwith Realty, 896 F.2d at 862- 63.1

15

Turning to the particulars of the instant case, Weisbart succeeded in filing his
refund claim within 3 years of the filing of his return. True, Weisbart filed no
independent claim for a refund. However, Treasury Regulation 301.6402-3(a)
(5) provides that where an individual files a tax return disclosing an
overpayment, that return itself "shall constitute a claim for refund... within the
meaning of... section 6511." Under this regulation, Weisbart's 1991 tax return

disclosed an overpayment, and therefore constituted a refund claim. And since

the tax return and refund claim were in the same document, and were
necessarily filed simultaneously, Weisbart's refund claim was clearly filed
"within 3 years from the time the return was filed." 26 U.S.C. 6511(a).
16

The district court properly exercised jurisdiction over Weisbart's refund suit
under the 3-year deadline established by section 6511(a).

17

B. The "Look Back" Provisions of Section 6511(b)

18

The Tax Code was obviously not set up to indulge the dilatory. Thus, while the
time limitations imposed by section 6511(a) may seem "illusory," a taxpayer is
prevented from recovering on a stale refund claim by the quantitative "look
back" provisions of section 6511(b). That section provides in pertinent part:

19

If the [refund] claim was filed by the taxpayer during the 3-year period
prescribed in [6511(a)], the amount of the... refund shall not exceed the portion
of the tax paid within the period, immediately preceding the filing of the claim,
equal to 3 years plus the period of any extension of time for filing the return.

20

26 U.S.C. 6511(b)(2)(A). This IRS jargon means that a taxpayer can recover
a refund of an overpayment, only if that overpayment was part of the taxes paid
during the last 3 years plus the period of any extension.

21

Here, the taxes withheld from Weisbart's wages during 1991 were by statute
deemed paid on April 15, 1992. See 26 U.S.C. 6513(b)(1). However,
Weisbart received an extension of 4 months from the IRS, until August 17,
1992. Thus, the "look back" period prescribed by section 6511(b)(2)(A) is 3
years and 4 months. The IRS concedes that 3 years and 4 months from April
15, 1992 (the date Weisbart is deemed to have paid his taxes) is August 17,
1995. The Service also admits that if Weisbart's refund claim is deemed to have
been filed on August 17, 1995, he would be entitled to his refund under section
6511(b)(2)(A). The question thus distills to whether Weisbart's refund claim mailed on August 17, 1995, but not received by the IRS until August 21, 1995 was nevertheless filed on August 17, 1995. We hold that it was.

22

The Tax Code has a mailbox rule, which provides that a submission is deemed
filed on the date it is postmarked, rather than the date it is received by the IRS.
See 26 U.S.C. 7502. Section 7502(a)(2)(A) states, however, that the mailbox
rule applies only if the postmark date falls on or before the "prescribed date for
the filing" of the submission.

23

The submission at issue here is Weisbart's claim for a refund. As already noted,
however, that claim was incorporated in Weisbart's untimely 1991 tax return
which Weisbart did not mail until August 17, 1995, three years after the
"prescribed date for [its] filing." 26 U.S.C. 7502(a)(2)(A). The Service
argues, and the district court held, that the "prescribed" period applicable to
Weisbart's tax return should also apply to the refund claim. Applying this
construction, Weisbart's refund claim would not enjoy the benefit of the
mailbox rule, and would therefore be barred.

24

The IRS's argument is contradicted by its own regulations. Treasury Regulation

301.6402-3(a)(5) provides that:

25

For purposes of section 6511, [a refund] claim shall be considered as filed on

the date on which such return (or amended return) is considered as filed, except
that if the requirements of 301.7502-1, relating to timely mailing treated as
timely filing are met, the claim shall be considered to be filed on the date of the
postmark stamped on the cover in which the return (or amended return) was
mailed.

26

(emphasis added). And the cross referenced Regulation 301.7502-1 provides:

27

[A] return may constitute a claim for refund or credit. In such a case, section
7502 is applicable to the claim for refund or credit if the conditions of such
section are met, irrespective of whether the claim is also a return.

28

Taken together, these two Treasury Regulations provide that the applicability of
the mailbox rule to the refund claim should be analyzed independently of the
timeliness of the tax return itself, regardless of whether they are in the same
document. See Anderson v. United States, 746 F. Supp. 15, 18 (E.D. Wash.
1990) (holding that although the "return qua return" was untimely, "the return
qua claim for refund" was timely), aff'd, 966 F.2d 487 (9th Cir. 1992). As such,
even though Weisbart's tax return was untimely filed, his refund claim enjoys
the benefit of the mailbox rule, and is deemed filed on August 17, 1995.
Because that date is within 3 years of the date when Weisbart is deemed to
have paid his withheld employment taxes, he may recover any overpayment
included in those taxes under the look back provisions of section 6511(b)(2)
(A).
C. The IRS's Alternative Argument

29

The IRS proffers an alternative basis to dispose of Weisbart's claim, one not

relied on by the district court. The IRS claims that even assuming Weisbart's
refund claim is properly deemed filed on August 17, 1995 for purposes of
section 6511(b)(2)(A), it must nevertheless be dismissed under the
jurisdictional provisions of section 6511(a).
30

Unsurprisingly, the infrastructure girding the IRS's alternative argument is

arabesque. As already noted, under the third deadline established by section
6511(a) "if no return was filed by the taxpayer," then the refund claim must be
filed "within 2 years from the time the tax was paid." Under the IRS's literal
reading of this provision, the use of the past tense "was filed" compels the
conclusion that the return must be filed before the refund claim. And here, the
IRS maintains, no return "was filed" before Weisbart filed his refund claim on
August 17, 1995, because the tax return itself was not actually filed with the
IRS until August 21, 1995. Thus, applying the 2-year-from-payment deadline,
Weisbart loses because his refund claim was not filed within 2 years from the
time the tax was paid.

31

We reject the IRS's alternative argument. Initially, we note that although

section 6511(a) has been on the books in its current form since 1958, no case
cited by the IRS, nor any uncovered by independent research, has adopted this
interpretation. Indeed, we question whether the Service has thoroughly
considered the possible implications of our accepting its alternative argument.
True, the Service would prevail over Weisbart. But that victory would be
irreconcilable with the Service's advisory position on this subject, as well as its
own regulations.

32

Essentially, under the IRS's alternative argument, only refund claims filed after
a tax return would enjoy the 3-year deadline of section 6511(a). As such, any
refund claim embedded in a tax return filed more than 2 years after a tax
payment would be untimely. But this reading of section 6511(a) is squarely at
odds with the Service's own 1976 Revenue Ruling on this subject. See Rev.
Rul. 76-511, 1976-2 C.B. 428. In that Ruling, the IRS addressed a situation
where a taxpayer's refund claim was embedded in his tax return and was filed
more than 2 years after the taxes were paid. Even though the tax return was
filed simultaneously with the refund claim (rather than before it as would be
necessary under the IRS's interpretation), the Revenue Ruling concluded that it
was timely for purposes of section 6511(a). And it reached that conclusion
without the slightest suggestion that the statutory language "was filed"
mandates the filing of the return before the claim. See id.

33

In this Circuit, a Revenue Ruling is "entitled to great deference." Texasgulf,

Inc. & Subs. v. Commissioner, 172 F.3d 209, 217 (2d Cir. 1999) (citations

omitted). It is regarded as representing "the official IRS position on application

of tax law to specific facts," and is presumed to have "the force of legal
precedent unless unreasonable or inconsistent with the provisions of the
Internal Revenue Code." Gillespie v. United States, 23 F.3d 36, 39 (2d Cir.
1994) (citations and internal quotation marks omitted).
34

Revenue Ruling 76-511 is obviously neither unreasonable, nor inconsistent with

the Tax Code. Indeed, on this appeal, the Service has failed to suggest any
rationale whatsoever as to why it is preferable for a tax return to be received
before (rather than at the same time as) the associated refund claim. Nor does
any such rationale occur to us. To the contrary, Treasury Regulation
301.6402-3(a)(5) expressly allows refund claims to be embedded in a tax return
and thus filed simultaneously. Moreover, Regulation 301.7502-1 - providing
that timely mailing will be treated as timely filing - assumes that a taxpayer can
indeed file a simultaneous refund claim without adverse consequence. And in
contrast to the Service's position here, the rationale for this permissive
regulatory regime is self-evident: it promotes efficiency by cutting down on the
Service's inevitable paper shuffle.

35

In sum, the IRS's alternative argument: (1) conflicts with its own Revenue
Ruling on this subject; (2) is inconsistent with its own regulations; and (3) is
unsupported by any articulated or apparent rationale. It is not without
significance that the IRS as an institution has now abandoned the similarly
literal argument that was adopted by the Miller court. We decline to adopt the
Service's alternative argument in the circumstances of this case.
D. The $700

36

Weisbart complains that he inadvertently omitted a deduction for real estate

taxes paid on his 1991 return, and that, had he included that deduction, he
would have been entitled to an additional $700 refund. Standing alone, this
additional refund claim was not presented to the IRS until August 1997 - more
than 3 years and 4 months after Weisbart paid his 1991 taxes. As such, it is
barred by the "look back" provision of section 6511(b)(2)(A). Weisbart argues,
however, that the $700 claim should relate back to his original refund claim.
We disagree.

37

Treasury Regulation 301.6402-2(b)(1) provides in pertinent part:

38

No refund or credit will be allowed after the expiration of the statutory period
of limitation applicable to the filing of a claim therefor except upon one or

more of the grounds set forth in a claim filed before the expiration of such
period.
39

Under this regulation, "[a] claim seeking refund upon one asserted fact
situation may not be amended out of time so as to require an investigation of
matters not germane to the original claim." Sappington v. United States, 408
F.2d 817, 819 (4th Cir. 1969); see, e.g., Mutual Assurance, Inc. v. United
States, 56 F.3d 1353, 1356 (11th Cir. 1995) (allowing amended claim to relate
back because "the amendment asserted the same ground for relief as the
original claim") (relying on Bemis Bros. Bag Co. v. United States, 289 U.S. 28,
33 (1933)); see also Pink v. United States, 105 F.2d 183, 187 (2d Cir. 1939)
("Where the facts upon which the amendment is based would necessarily have
been ascertained by the commissioner in determining the merits of the original
claim, the amendment is proper."); Favell v. United States, 22 Cl. Ct. 571, 579
(Cl. Ct. 1991) ("[A] taxpayer cannot amend his refund claim, with an informal
refund claim or otherwise, to set forth a new ground for refund not asserted in
the original claim after the statute of limitations has expired.").

40

Applying these principles to the instant case, Weisbart cannot recover the
additional $700. His amended claim for that amount is based on an entirely
different ground (i.e., refund for paid real estate taxes), than was his original
claim (i.e., refund for withheld payroll taxes). Weisbart claims that the IRS
should have deduced that he was entitled to the $700 refund from his returns
for the previous five years, 1986 through 1990, in which he had always claimed
a virtually identical real estate tax deduction. But this argument is utterly
devoid of legal support. The Service is not expected to be Sherlock Holmes.
Weisbart's belated claim for $700 is barred by 26 U.S.C. 6511(b)(2)(A).

CONCLUSION
41

We AFFIRM the district court's rejection of Weisbart's additional claim for

$700. The order of the district court dismissing Weisbart's claim for a $4,867
refund is REVERSED. This case is REMANDED for further proceedings.

NOTE:
1

As discussed infra, the bar that prevents taxpayers from taking advantage of the
ability to file an untimely return is not section 6511(a), but the "look back"
provisions of Section 6511(b). See Video Training, 991 F. Supp. at 1260-61
(citing cases).