* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-40836

Conference Calendar

 

DAVID M. NICHOLS,

Plaintiff-Appellant,

versus

INTERNAL REVENUE SERVICE, Commissioner,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:98-CV-1980

--------------------

December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges. 

PER CURIAM:*

David M. Nichols, Texas prisoner # 666133, appeals the

district court’s dismissal of his civil action as frivolous

pursuant to 28 U.S.C. § 1915(e). He argues that the district

court erred in holding that his action for judicial review of the

denial of tax refund requests was barred by the applicable twoyear statute of limitations. Nichols’ taxes for 1990 were deemed

paid on April 15, 1991, and his taxes for 1991 were deemed paid

on April 15, 1992. See 26 U.S.C. § 6513(b)(1). A refund claim

must be filed with the Internal Revenue Service (IRS) “within 3
No. 00-40836 

-2-

years from the time the return was filed or 2 years from the time

the tax was paid, whichever of the periods expires later, or if

no return was filed by the taxpayer, within 2 years from the time

the tax was paid.” See 26 U.S.C. § 6511(a). Because he did not

timely file tax returns for 1990 and 1991, the applicable

limitations period for seeking a refund was two years from the

time the tax was paid. See id. He did not file his tax

returns/refund requests for the years 1990 and 1991 until

September 1995. Therefore, he did not timely file his refund

requests with the IRS within the applicable two-year limitations

period in 26 U.S.C. § 6511(a)(1).

Nichols’ refund request was denied by the IRS on December 4,

1995. Under 26 U.S.C. § 6532(a)(1), Nichols had two years to

file a petition for judicial review of the denial of the request. 

However, Nichols did not file the instant petition until November

16, 1998, after the expiration of the applicable two-year

limitations period in 26 U.S.C. § 6532(a)(1). Nichols has not

shown that the IRS prevented him in any way from filing his

petition for judicial review within the applicable two-year

statute of limitations. Therefore, he has not shown that the

district court erred in dismissing his action as time-barred.

Nichols’ appeal is without arguable merit, and thus,

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Therefore, Nichols’ appeal is DISMISSED. See 5th Cir.

R. 42.2. Nichols is advised that the district court’s dismissal

of his action and this court’s dismissal of his appeal both count

as “strikes” for purposes of 28 U.S.C. § 1915(g). See Adepegba
No. 00-40836 

-3-

v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Nichols is also

advised that if he accumulates three strikes, he will be barred

from bringing a civil action or an appeal proceeding in forma

pauperis unless he is under imminent danger of serious physical

injury. See 28 U.S.C. § 1915(g). Nichols should review any

pending pleadings or appeals to ensure that they do not raise any

frivolous claims.

APPEAL DISMISSED; SANCTION WARNING ISSUED.