and we'll hear argument next and pfizer versus united states seventeen two three zero seven good morning honors robert walton for the pfizer the appellant court this case is a case for overpayment interest pfizer filed this two thousand and eight tax return had an overpayment in excess of seven hundred million dollars it requested five hundred million of that back the government claims to have mailed six checks to pfizer pfizer received none of them nearly six months later pfizer received a wire transfer of the money and it did not receive the time value that money while the government held the five hundred million that's what was the reason given by the government to refused to pay the interest after that they have said that they met their obligation under the law i w my sending out the six letters or the six checks which we did not get to that far along to get a full explanation they have denied that the interest was due because they have followed their procedure to make certain the check was mailed this court and doolan addressed the exact issue on the merits of this case that judge walker's discussing and held that pfizer is entitled to interest in this case because the refund was not properly tendered that if you do not receive the checks it wasn't a proper tender and therefore they're entitled to the interest this appeal raises two issues the first is did the district court properly exercised jurisdiction concurrent with a court of federal claims over and over payment interest claim the second is whether the district court erred in applying the to your refund statute to a claim for overpayment interest which is generally subject to the six year statute because and held that overpayment interest is any sum related to an excessive amount the five hundred million dollars was an excessive payment pfizer do not receive a timely refund of that amount and when they receive that amount they should have been paid interest on for so that pfizer can proceed to collect that interest it's also the substantive right to that interest and it contains no statute of limitations there is no statute of limitations a political to that other than the general statute of limitation which is six years which is six years and that's what  irises stated that filing a claim for a refund does not change the six year statute the secure statute applies and it always applies and the fact that a parallel separate provision which contains similar language has a two year statute twenty two is a guess seventy four twenty two is a waiver of sovereign immunity for taxpayer seeking a tax refund tax refund so you have the taxpayer pays money and either that it was a tax or it pays interest and then you have to follow the refund procedures this is tax refund it's a claim on a general debt that is owed by by the by the government yes it's over payment interest which is governed by a separate set of rules and it's cognizable in both the tax court and district is it seems to me your coming into district court saying this is a tax claim but you don't want to be bound by the two year statute of limitations applicable to tax crimes why am i wrong because this is an overpayment interest claim it a tax go if it's an overpayment interest claim why aren't you in the court of claims because the district court has concurrent jurisdiction over the court of federal claims on these matters as the government the district court here has concurrent jurisdiction over these claims the only all the other courts have looked at this issue have said the secure statute applies to overpayment interest that's a court of federal claims the federal circuit and the southern district of iowa in the lions case follow the appropriate analysis here the because no claim for a refund is necessary you don't get to section seventy four twenty two at all seventy four twenty two only applies in situations where you are  that claim that you bought the suit under fourteen ninety one yes but you did not direct so and you think what pfizer's what your argument is is that there are no ramifications to pursuing a suit under thirteen forty six as opposed to fourteen ninety one that is correct there are courts of concurrent jurisdiction and in the district court here the government is admitted if there were a pfizer we're seeking one dollar of refund they could get that dollar refund and overpayment interest in the district court but they're saying since there are limitations whatever sense of them patients exist in connection with thirty forty six we should ignore because these are courts of concurrent jurisdiction the same hold then then that's your statute would clearly apply for the dollar but for the interest the secure statute would apply because the only way you get to the six year statute is if no other statute of limitations applies and you making a point that also that is a statutory matter you don't have to jump through hoops to find that it's a it's a it's a six year statute the other side has to jump through hoops to find it it's a two year statute because they have to rely on other provisions that are not are not implicated by this provision that is correct your honor in addition the district court cited no authority for its position the government has cited no case that holds a year statute applies in any case that is looked at the statute of limitations on when overpayment interest may be collected they've applied the secure statute that's going to underscore team that those cases fourteen ninety one cases are they thirteen forty six cases there are both circuit case in a fourteen ninety one context they are courts of concurrent jurisdiction and the fact that you would have two different sets of statute of limitations applying to a claim my problem is i'm looking for whatever reason it's a separation of powers  issue congress decided to do one thing in connection with the thirteen forty six suit and another thing in connection with the four thousand nine hundred one suit you could i think you've acknowledge pursued the fourteen ninety one route  gotten the benefit of a six year session nations i see that but you're telling me that there are no bombs cations not withstanding the difference in language of the two statutes to pursuing at thirteen  fourteen forty six well you know there's a principle called the election of evidence when you go down one route you sort of close these other avenues why isn't that true here because there is no requirement under thirteen thirteen forty six while parallel in terms of talking about the tax matters covered thirteen forty six does not have a predicate that you file a claim for refund and thirteen forty six doesn't say that seventy four twenty two is your exclusive waiver of sovereign immunity the pfizer met the two part sovereign immunity now is here with section sixty six eleven entitle them to the interest and with thirteen forty six a one giving the district court jurisdiction over the matter discretion being the better part of valor why don't you just have a send you to the court of claims where you can have your six year statute of limitations and no questions asked because doolan is controlling authority in this circuit and it in titles fazer to win on the merits as well th thank you you've reserved three minutes for a bottle and we'll hear from the government and morning your honour's may please the court christine post cobbler united states attorney's office for the government  what would be  marry if they didn't mail a refund checks then you would agree that the interest should be paid up to the present time the statute sixty six eleven does provide for interest on a tax overpayment from the time that the so without having all of the background that discovery would allow in this case we would agree that pfizer would be entitled to interest to the extent that th so that you're fighting this on other grounds you're fighting it on jurisdictional grounds and statute limitations graham's right the issue here is that i know that with the issues are reviewed that's what you've been asking us to do but ultimately if litigated through the merits of a case but when we first moved to dismiss the district court we also notified the district court that we would be amenable to a transfer to the court of federal claims which is the only court any properly here pfizer's claim we had to move to dismiss because the case law and the statu claim a standalone claim for interest on a tax overpayment to be brought in the district court under thirteen forty six and in doing this both the district court and the second circuit observed that case was started with a claim for both a refund of overpayment itself as well as interest regard it was iranians because if you look at the language of the statute itself it talks about a sum alleged to have been excessive it's a fine distinction but it does not allow for a claim for a sum alleged to be excessive but to have been just scraps and then ford followed suit because it came after scrip so yes it would be coming out a different way from the sec circuit which we think is warranted here looking at the plain language of the statute itself the other cases on point and then the internal revenue code very distinct treatment between and even if it did then the district court's decision that the case should be dismissed as time barred should be affirmed because you can't that the language identity let's assume now you're assuming jurisdiction t thirty forty six and saying that statute is is two years that's correct but there's nothing to fear thirteen forty six states with a statute years you're having to read into that statute of the two year provision internal revenue code which along with sixty five thirty two a imposes a two year statute of limitations on any of the categories of claims covered by thirteen forty six they want to use the same language that was inserted into both of the predecessors of the sections by the same act so they cover the same category of claims pfizer's argument that the six year statute of limitations could apply regardless of whether plame is brought under fourteen ninety one a or thirteen forty six a one disregards the fact that we do have a very specific to your statute of limitations period in the internal revenue code that by virtue of seventy four twenty two using the same language is thirteen forty six a one off or is a very specific limitations period so the six year general such of them patients period falls away that's available where a claim i considered a claim against the united states founded on an act of congress for which only fourteen ninety one day and thirteen forty six a to provide the jurisdiction a waiver not where you come into court invoking the jurisdiction of thirteen forty six a one w tax over pain was disallowed just sent a general letter noting the six year statue of limitations period but do not specify that that claim could be brought in district or percent to thirteen forty six they want to simply notes that that six year doesn't apply because the claim is considered one for money as you are but your earlier just a general money claim against the government which is under fourteen i don't so if this case is has turned over to the court of claims then all of these arguments go away right then the case w constitutional right i think that here the argument is that the district court never had jurisdiction oh i know i know the argument but i'm trying to see if we government's position on the government's position is that the court should not cannot assume jurisdiction or thirteen forty six a one because that without decided without deciding that that in fact includes a claim that would not be such a subject i could vote holing up for several reasons first pfizer raises a good what's holding only for the first time on appeal so it's a way of that argument if they fall back on the equitable stop argument they raise below again just a core part of the have a bat was also waived because pfizer both the detail in the technical aspects of the limitations period to find that congress did not intend for that period to be a quote we told we think the court would come out the same way even post wrong and post henderson and find that this is a jurisdictional limitation the government's argument here adds words to section thirteen forty six a one that don't exist in section seventy four twenty two there is an express provision that says until a claim for a refund or credit has duly been filed with the secretary seventy four twenty two only applies on claims for refunds for taxes paid the waiver for sovereign immunity here is section sixty six eleven and the government is admitted that the six year statute only applies because no other statute of limitations applies the revenue rulings both state the secure statute applies it doesn't state they only apply in the court of federal claims and as the court in lyons properly analyzed and that the g federal circuit decision  cited to lyons for the proposition that there is no need for pfizer to file a claim they could have just proceeded directly to court and tried to receive their interest they filed the claim to try to save the resources and get the government to pay on a valid overpayment interest the pfizer pursued their remedies by going to iris appeals iris appeals then issued the letter that said the six year statute applies and that you need to  proceed on maintaining your rights there the government says you forfeited that argument we did not the district court has concurrent jurisdiction if the district court can grant overpayment interest in connection with a refund then the jurisdiction there thirteen forty six should be broad enough to encompass overpayment interest on its own there is nothing in thirteen forty six that is says that it's soley a remedy under seventy four twenty two number that you make so you made this argument before the discourse that you're making to us right now yes and we made that argument because the refund procedures just are not a political to overpayment interest cases and the only way you get to the to your statute is if the refund procedures apply it's clear from the case law in the federal circuit from the case law in lyons and in other contexts where you know this court reversed the district court in dillon and ordered the remedy was overpayment interest and that was a case that was the jurisdiction was analyzed by the district court under thirteen forty six a one they held their interest was something that could be covered and they proceeded if the district court upon satisfaction of the underlying tax liability did not have jurisdiction over the overpayment interest than this court's ruling in doing would have been inappropriate because you know if it's only you can if you can only get the tax refund through seventy four twenty two and thirteen forty six a one then the court should have dismissed the action and doing because everything that was in within its jurisdiction has been decided the court went on to decide the overpayment interest because it is in the song as described in scripts and has affirmed in the six circuit and ford all the case law and all the authorities in this area support pfizer's two arguments the six circuit supports the jurisdictional claim with scripts and for the revenue rulings the g e case in the federal circuit the court of federal claims alexander proudfoot the district court in lyons all assert the six year statute applies and the only way the six years that you can apply is if no other statue of limitations lies thank you will reserve deci