USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
for the First Circuit
for the First Circuit
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No. 97-1729
GEORGE W. DAVID,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
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[Hon. Kenneth P. Neiman, U.S. Magistrate Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Paul M. Stein with whom Malkasian, Hicinbothem & Mollica was on
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brief for appellant.
Bridget M. Rowan with whom Gilbert S. Rothenberg, Attorneys, Tax
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Division, Department of Justice, Loretta C. Argrett, Assistant
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Attorney General, and Donald K. Stearn, United States Attorney, were
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on brief for appellee.
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December 29, 1997
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ALDRICH, Senior Circuit Judge. In this action to
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recover funds advanced to the Internal Revenue Service
("IRS") by George W. David, plaintiff-appellant, the
magistrate judge's opinion, confirmed by the district court,
acceptably reduced the dispute to what was the character of
David's remittance, whether a tax payment or a deposit, and
whether the equities overcame a decision otherwise favoring
the government. On summary judgment, it found the remittance
a payment, which meant that the refund claim had been made
too late, and denied any equitable extension. We affirm.
Shortly before April 15, 1990, when his 1989 income
tax return, and payment, were to fall due, David's business
records were taken into federal custody pursuant to a search
warrant. Without them he could not prepare his return or,
allegedly, even reasonably estimate his tax. On April 15 he
filed a request on Form 4868 for an automatic four month
extension of time to file his return. With this he enclosed
a check for $12,000, which the IRS negotiated. He later
obtained a second extension to October 15, 1990. He did not
file his 1989 return, however, until February 24, 1994.
On the return when filed David noted the $12,000 as
an "Amount paid with Form 4868." With credits, it turned out
that all that had been due was $749, and the return claimed
refund of the $11,251 balance. The refund claim was timely
under I.R.C. 6511(a). Cf. Oropallo v. United States, 994
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F.2d 25, 27 (1st Cir. 1993) (per curiam) (assuming that a
late return is a "return" within the meaning of 6511(a)),
cert. denied, 510 U.S. 1050 (1994). Unhappily, however,
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6511(b)(2)(A) limited the amount of credit or refund to the
amount of tax paid within the three years, plus the six
months extension preceding the refund claim. Accordingly, as
a claim for refund of a tax payment made on April 15, 1990,
David's return was some four months too late. It was not too
late if the remittance had simply been a deposit.
The IRS stood on its position of payment, and David
brought this suit. In his complaint, doubtless because
executed pro se, he asserted that he was suing for an income
tax refund of $11,251, which, inescapably, was the unused
portion of his $12,000 remittance. Eventually, when he
obtained counsel who examined the law, David realized that he
had intended the $12,000 to be a general deposit, not the
estimated tax payment (larger for safety), required to
accompany his Form 4868.
Concededly, whether a remittance to the IRS is a
payment, or is a general deposit whose recovery would not be
statutorily barred, may be a matter of intent and
circumstance. See generally Rosenman v. United States, 323
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U.S. 658, 662 (1945); Moran v. United States, 63 F.3d 663,
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668-69 (7th Cir. 1995); Blatt v. United States, 34 F.3d 252,
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254-55 (4th Cir. 1994). But even if the IRS is incorrect in
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claiming that the circumstances shown warrant finding of a
tax payment as matter of law under I.R.C. 6513(b)(1), which
we do not decide, but cf. Gabelman v. Commissioner, 86 F.3d
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609, 612 (6th Cir. 1996) (holding remittance accompanying
Form 4868 to be a payment as a matter of law under
6513(b)(1)); Weigand v. United States, 760 F.2d 1072, 1073
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(10th Cir. 1985) (same), it is only natural to assume that
the $12,000 check was the payment that the form said was
required in the absence of any assertion to the contrary.
David points to no objective manifestation of his "deposit"
intention at the time of remittance.1 To this we add his now
counsel's inability, at oral argument, even to suggest a
purpose for intending a deposit.
We cannot decide in David's favor. Undoubtedly he
had a tax liability on April 15, 1990. See I.R.C. 6151(a);
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Manning v. Seeley Tube & Box Co., 338 U.S. 561, 565 (1950).
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His extension to file did not postpone this liability. See
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26 C.F.R. 1.6081-1(a) and 1.6081-4(b). His Form 4868
remittance, required to be an estimate of this liability, was
made in recognition thereof. With no further showing, the
presumed intention was to discharge the liability that
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1. Neither party was able to produce David's Form 4868. His
oft-repeated characterization of his remittance as
"arbitrary" in calculation is insufficient in this regard.
Similarly insufficient are his contentions as to the IRS's
accounting practices, which reveal nothing of David's
supposed deposit intent.
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renders the remittance a payment. Cf. Moran, 63 F.3d at 668;
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Blatt, 34 F.3d at 255-57; Ewing v. United States, 914 F.2d
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499, 504 (4th Cir. 1990), cert. denied, 500 U.S. 905 (1991);
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Ameel v. United States, 426 F.2d 1270, 1273 (6th Cir. 1970).
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Accordingly, David's refund claim fails by reason of
6511(b)(2)(A).
David's equitable claim, failing his deposit
argument, is based on the following facts. His time for
filing a claim for refund of a tax payment made on April 15,
1990 would expire, given the six months extension allowed for
filing the return and claim, on October 15, 1993. On that
date, however, he was in federal custody. The total picture
is that the government maintained its custody of David's
needed records from April 4, 1990 until February 21, 1992.
It then, pursuant to an agreement between David and his
former employer, released them to a third party for making
copies; neither principal party to have access without the
presence of the other until the copying was completed. For
some undisclosed reason, David did not finally get his
records until December 31, 1992.
Surely there could be no per diem charge against
the government for the time that the records were lawfully in
its custody early on; the equity issue would turn on how much
time was left, obviously there was enough. Nor should the
government be charged for the possible difficulties imposed
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by David's voluntary surrender thereafter for copying. A
more serious matter, following a plea (to unrelated federal
counts) on December 10, 1992, David himself was in government
custody; January 8, 1993 to October 4, 1993, in prison; then,
to January 5, 1994, in a halfway house. Reasonably promptly
thereafter, on February 24, 1994, he filed his return and
refund claim.
In United States v. Brockamp, 117 S. Ct. 849, 852-
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53 (1997), the Court, seemingly flatly, ruled out all
equitable claims that would supplement the statutorily-given
reasons for tolling or extending the time for filing claims
for refund of tax payments. We might consider it
particularly rough for the government to lock up a taxpayer
before the time for a claim of refund would expire, and then
tell him it was too late. At the same time, we must adhere
to the Court's recognition that "Congress decided to pay the
price of occasional unfairness in individual cases
(penalizing a taxpayer whose claim is unavoidably delayed) in
order to maintain a more workable tax enforcement system."
Id. at 852; cf. Oropallo, 994 F.2d at 28-31. We do not want
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to recognize a special exception for taxpayers whose
difficulties are due to their criminal convictions.
Affirmed.
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