Finkelstein did not commence this tax refund suit within two years of receiving the Notice of Disallowance of her tax refund claim. Ethel Finkelstein admits that Goodman, who held power of attorney pursuant to the 15 February 1989 Demand Letter, received the Notice of Disallowance sent by the I.R.S. on or about 16 June 1989. Ethel Finkelstein Affidavit at P 19; Opposition Brief at 3. Ethel Finkelstein also admits Goodman informed her of the Notice of Disallowance in June 1989. Finkelstein Affidavit at P 19. The Complaint was filed 14 February 1996. Complaint at 1. As the Government Brief indicates, the filing of the Complaint occurred six years and 213 days after the I.R.S. informed Ethel Finkelstein that the Bank Check would not be returned and would be applied to Jerome Finkelstein's Personal Income Tax Liability. Government Brief at 8-9; Ethel Finkelstein Affidavit at P 19.
Ethel Finkelstein argues that the Notice of Disallowance was ineffective because it was not sent by certified mail or registered mail, as required by 26 U.S.C. § 6532(a). Opposition Brief at 4. Ethel Finkelstein contends "the failure to comply with the code deems the government's June 16 letter as nonresponsive." Id. Ethel Finkelstein cites Nash v. United States, 58 F.R.D. 68 (D.Neb. 1972) and Daniel v. United States, 454 F.2d 1166 (6th Cir.), cert. denied, 409 U.S. 843, 34 L. Ed. 2d 82, 93 S. Ct. 42 (1972), in support of her argument. Each case is distinguishable from the instant matter.
In Nash, the plaintiff did not admit to receiving actual notice of the disallowance mailed on 9 May 1968. Nash, 58 F.R.D. at 68. The I.R.S. asserted that such notice was mailed by certified mail, however no receipts were produced to support that assertion. The court held that whether the notice of disallowance was mailed by certified or registered mail to start the running of the limitations period was a genuine issue of material fact which precluded summary judgment. Id. at 69.
In Daniel, the Government produced stamped receipts indicating that the notice of disallowance had been mailed on a certain date. Daniel, 454 F.2d at 1166. The Sixth Circuit held that this evidence was sufficient for the district court to find that the notice of disallowance was mailed triggering the statute of limitations. Id.
In a comparable case, the Eleventh Circuit explained that the statute of limitations in § 6532(a)(1) begins to run from the date that the I.R.S. mails the notice of disallowance by certified or registered mail, regardless of whether the taxpayer actually receives it. Rosser v. United States, 9 F.3d 1519, 1522 (11th Cir. 1993). The court cited the impracticality of requiring the I.R.S. to prove actual receipt, but indicated that the rule allowing the I.R.S. to mail the notice by registered or certified mail serves as a tool for the presumption of receipt. Id. Otherwise, the "taxpayer who wished to delay the running of the statute could do so simply by denying receipt of the disallowance." Id. at 1522-3.
In the instant case, Ethel Finkelstein admits Goodman received the Notice of Disallowance on or about 16 June 1989. Finkelstein Affidavit at P 19. Goodman advised Ethel Finkelstein of the Notice of Disallowance in June 1989. Finkelstein Affidavit at P 19. Accordingly, there is no need for return receipts to prove that the Notice of Disallowance was mailed.
The requirement of notice by certified mail or registered mail in § 6532 may be characterized as a protective measure for the I.R.S. to use to prove that the Notice of Disallowance was indeed mailed. The fact that the Notice of Disallowance may not have been mailed by certified or registered mail is of no moment in this case. Ethel Finkelstein's actual receipt proves that the Notice of Disallowance was delivered. See Fellouzis v. United States, 1994 U.S. Dist. LEXIS 16745, No. 91-1251- CIV-T-21C, 1994 WL 782232, at *4 (M.D.Fla. Nov. 8 1994) ("whether the notices were sent by certified mail, registered mail, or by some other means [under § 6532(a)(4)] is not a material issue when the existence of the notice in the hands of the Plaintiffs is not in dispute, and there is no dispute concerning the date of the mailing of the notice"). Cf. Balkissoon v. Comm'r of Internal Revenue., 995 F.2d 525, 528 (4th Cir.), cert. denied, 510 U.S. 978, 126 L. Ed. 2d 424, 114 S. Ct. 473 (1993) ("[I.R.S.] Commissioner's failure to comply with the authorization in section 6212(a) inviting the use of registered or certified mail proves to be a technical, but harmless violation"); Berger v. Comm'r of Internal Revenue, 404 F.2d 668, 673 (3d Cir. 1968), cert. denied, 395 U.S. 905, 23 L. Ed. 2d 218, 89 S. Ct. 1744 (1969) (section 6212(a) authorization that notice of deficiency be sent by registered or certified mail does not forbid any other method of notice). See also Circo Resorts, Inc. v. United States, 80-1 U.S.T.C. P 9380 (Ct.Cl. 1980); Jackson v. United States, 60-2 U.S.T.C. P 9531 (N.D.Ga. 1960).
In the case sub judice, the fact that the Notice of Disallowance was not sent by certified mail is not material. Ethel Finkelstein received the Notice of Disallowance and therefore had actual notice of the disallowance in June 1989. Ethel Finkelstein offers no explanation of why she waited until February 1996 to file her suit. Because the various limitations sections in the Internal Revenue Code allow for suits against a sovereign, their requirements are jurisdictional. See, e.g., Commissioner of Internal Revenue v. Lundy, U.S. , 133 L. Ed. 2d 611, 116 S. Ct. 647, 649 (1996) (holding that Tax Court lacks jurisdiction after expiration of the 2-year look-back period set forth in § 6512(b)(3)(B)); United States v. Dalm, 494 U.S. 596, 601-602, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (1990) (District Court lacked jurisdiction long after the limitations period under §§ 6511(a) and 7422(a)); Koss v. United States, 69 F.3d 705, 707 (3d Cir. 1995) (addressing jurisdictional nature of 26 U.S.C. § 6511); Oureshi v. United States Internal Revenue Service, 75 F.3d 494, 497 (9th Cir. 1995); Mutual Assurance, Inc. v. United States, 56 F.3d 1353, 1355 (11th Cir. 1995); Angle v. United States, 996 F.2d 252, 253 (10th Cir. 1993); Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991), cert. denied, 504 U.S. 942, 119 L. Ed. 2d 203, 112 S. Ct. 2277 (1992); Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990); Dalton v. United States, 800 F.2d 1316, 1319 (4th Cir. 1986); cert. denied sub nom., 481 U.S. 1024, 95 L. Ed. 2d 516, 107 S. Ct. 1911 (1987); Johnson v. United States, 81-1 U.S.T.C. P 9298 (6th Cir. 1981); Daniel, 454 F.2d at 1167 (6th Cir. 1972); Stevens v. United States, 859 F. Supp. 1110, 1112 (W.D.Mich. 1994). Accordingly, Ethel Finkelstein's claim for the refund is barred by the statute of limitations. Summary judgment is granted in favor of the Government.
2. General Statute of Limitations
The Government further argues that the suit is barred by the general statute of limitations found in 28 U.S.C. § 2401(a). That section, which governs actions against the United States, provides that "every civil action shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). A specific requirement of statute of limitations for actions against the United States, however, will prevail over the general limitations requirement of § 2401(a). See Gordon v. United States, 227 Ct. Cl. 328, 649 F.2d 837, 844 (Ct.Cl. 1981) ("In seeking a refund of taxes...a taxpayer must ascribe to the period of limitations established by I.R.C. §§ 6511(a) and 6532(a) rather than the 6 year period of 28 U.S.C. §§ 2501 and 2401"); see also United States v. A.S. Kreider Co., 313 U.S. 443, 447, 85 L. Ed. 1447, 61 S. Ct. 1007 (1940) (regarding tax refund claim);
United Sand and Gravel Contractors, Inc. v. United States, 624 F.2d 733, 738 (5th Cir. 1980) (regarding wrongful levy action); Myszkowski v. United States, 553 F. Supp. 66 (D.C.Ill. 1982) (regarding tort claim).
The Supreme Court held that the claim for a tax refund was governed by the shorter period of limitations, rather than the general six year statute of limitations. United States v. A.S. Kreider, 313 U.S. at 447. The Court stated that the general statute of limitations "was intended merely to place an outside limit" on a suit against the United States. Id. The six year limitation period, then, is an outside limit consistent with, but secondary to, the two year limitation period governing a tax refund.
The Government argues that in the event the two year limitation period has not run due to the failure of the I.R.S. to mail the Notice of Disallowance by registered or certified mail, the six year statute of limitations governs. Government Brief at 14. The Government asserts that Ethel Finkelstein's action is barred because it was not "filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). The Government contends that the right of action first accrued either when the I.R.S. "rendered a decision" pursuant to the Notice of Disallowance, or six months after the claim for refund was made to the I.R.S. Government Brief at 9; 26 U.S.C. § 6532(a).
In the absence of a specific limitations period, the general statute of limitations period in 28 U.S.C. § 2401 applies. If 26 U.S.C. § 6532 fails due to the lack of certified or registered mailing, 28 U.S.C. § 2401(a) acts as a secondary limitation period barring this action. Section 6532(a) of Title 26 denotes when a tax refund suit first accrues by stating that a suit may not be begun before the expiration of six months from the date of filing the claim unless the Secretary renders a decision thereon within that time. 26 U.S.C. § 6532(a). The action in the instant case could have accrued either in August 1989, six months after Ethel Finkelstein authorized the 15 February 1989 Demand Letter for the Bank Check, or on 16 June 1989, when Ethel Finkelstein acquired actual notice of the Notice of Disallowance. The Complaint was filed on 14 February 1996. In either case, more than six years has passed since accrual of the action and, therefore, the action is barred. Summary judgment is granted to the Government.
For the reasons stated, the Government Motion for Summary Judgment is granted.
ALFRED J. LECHNER, JR., U.S.D.J.
This matter having come before the court by way of the defendant the United States of America's (the "Government") motion for summary judgment (the "Government Motion for Summary Judgment"), and the court having considered the submissions of the parties, and for the reasons set forth in a Letter-Opinion filed on this date, and for good cause shown,
IT IS, on this 9th day of September, 1996,
ORDERED, that the Government Motion for Summary Judgment be and hereby is granted.
ALFRED J. LECHNER, JR., U.S.D.J.