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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

BRUCE A. TISON, Executor/

Administrator for the

ESTATE OF CHARLES G. TISON,

NO. CIV. S-04-1997 LKK/GGH

Plaintiff,

v. O R D E R

UNITED STATES OF AMERICA,

Defendant.

 /

Plaintiff, Bruce Tison, is the executor of the estate of his

father, Charles Tison. He sues seeking a refund in the amount of

$213,976.00 for overpaid taxes for the 1993-1998 tax years and an

abatement and refund of interests and penalties in the amount of

$30,526.36 for the 1993 and 1996 tax years. The United States

moves, pursuant to Fed. R. Civ. P. 12(b)(1), to dismiss plaintiff’s

claims for refunds for the 1993 through 1995 tax years (excluding

certain credits) and the 1999 through 2001 tax years. The

defendant also moves to dismiss plaintiff’s claim that the

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penalties and interests assessed for the 1999 tax year be abated.

The defendant asserts that the court lacks subject matter

jurisdiction over those claims.

I.

THE COMPLAINT 

On September 24, 2002, Charles G. Tison (“Tison”) died and his

son was named the executor of the estate. Plaintiff discovered

that his father had not filed state and federal income tax returns

for the tax years 1993 through 2001. Plaintiff filed those returns

in January of 2003, and now seeks refund and abatement relative to

the tax years in issue.

Before his death, Tison made estimated tax payments for each

of the years at issue. Plaintiff alleges, however, that during

those years Tison was physically and mentally disabled due to

chronic alcoholism, and thus unable to arrange his financial and

personal affairs. His alcoholism ultimately lead to his death.

Plaintiff determined that the estimated payments that Tison

made each year resulted in overpayments for the 1993 through 1998

tax years and a deficiency for the 1999 through 2001 tax years. 

The net result was an overall overpayment by Tison to the United

States of $213,976.00.

On July 28, 2003, plaintiff requested the overpayment from the

1993 through 1998 tax years be credited against the amount of taxes

due for the 1999 through 2001 tax years and that the remainder

overpayment balance of $213,976.00 be refunded to Tison’s estate.

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3

Plaintiff also formally requested a waiver of the statute of

limitations under 26 U.S.C. § 6511(h). The IRS denied the waiver

under § 6511(h) and thus denied the plaintiff’s request for a

refund for the tax years 1993-1996. Plaintiff brings suit to

recover the overpayment. 

II.

STANDARDS 

It is well established that the party seeking to invoke the

jurisdiction of the federal court has the burden of establishing

that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S.

269, 278 (1936); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.

1986). 

Where, as here, the defendant contends that the allegations

of jurisdiction contained in the complaint are insufficient on

their face to demonstrate the existence of jurisdiction, the

plaintiff is entitled to safeguards similar to those applicable

when a Rule 12(b)(6) motion is made. The factual allegations of

the complaint are presumed to be true, and the motion is granted

only if the plaintiff fails to allege an element necessary for

subject matter jurisdiction. See 2A J. Moore, J. Lucas & G.

Grotheer, Moore's Federal Practice, ¶ 12.07 (2d ed. 1987); see also

Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir.

1982); Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981),

cert. denied, 454 U.S. 897 (1981); Mortensen v. First Fed. Sav. &

Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977). A complaint will

be dismissed for lack of subject matter jurisdiction (1) if the

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1 Defendant excludes from their motion the $4,756.67 and

$8,064.53 credits, both applied on April 15, 1998 for the 1993 and

1994 tax years. As defendant concedes, credits are deemed as

payments paid when applied for the purposes of 26 U.S.C. § 6511.

Thus, since the foregoing credits were applied on April 15, 1998

within two years of the effective date of § 6511(h), July 22, 1998,

the plaintiff's claim for refund of those credits were not

otherwise barred by Section 6511(a) & (b) as of the effective date

of Section 6511(h), July 22, 1998. 

4

case does not "arise under" any federal law or the United States

Constitution, (2) if there is no case or controversy within the

meaning of that constitutional term, or (3) if the cause is not one

described by any jurisdictional statute. Baker v. Carr, 369 U.S.

186, 198 (1962).

III.

ANALYSIS 

Defendant moves to (1) dismiss plaintiff’s claims for refunds

involving the 1993 through 1995 tax years, excluding certain

applied credits1; (2) dismiss plaintiff’s claims for refunds

involving the 1999-2001 tax years; and (3) dismiss plaintiff’s

claim that the penalties and interest assessed for the 1999 tax

year should be abated. For the reasons explained below, the

defendant’s motion is granted in part and denied in part.

A. RELEVANT PROVISIONS OF THE TAX CODE 

Under 26 U.S.C § 6511(a), a taxpayer must file a claim for

credit or refund of an overpayment within three years from the time

the return was filed; or if no return was filed, within two years

from the time the tax was paid. 26 U.S.C § 6511(a).

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2 As the Circuit has explained, under § 6511(a) “a taxpayer’s

claim is timely if it is filed within three years from the date his

income tax return is filed, regardless of when the return is

filed.” Omohundro v. United States 300 F. 3d 1065, 1069 (9th Cir.

2002). Section 6511(b) is a look-back provision, which

“effectively eliminate[s] any danger of taxpayers recovering on

stale claims.” Id. at 1068. As the Omohundro court notes, this

effect is illustrated by Revenue Ruling 76-511, in which the IRS

found a refund claim was timely under 6511(a), but was barred by

6511(b) since the taxpayer did not pay the tax to be refunded

within the three year period immediately preceding the date the

return was filed. Id. 

5

Even if a taxpayer files a claim within the required time

period, § 6511(b)(2) places limitations on allowance of credits or

refunds. When the claim is filed within the three year period per

6511(a), the claim is limited in amount to the portion of tax paid

within the three year period immediately proceeding the date the

claim was filed. 26 U.S.C. § 6511(b)(2)(A). When the claim was

filed within the two year period per 6511(a), the claim is limited

in its amount to the portion of tax paid within the two year period

immediately proceeding the date the claim was filed. 26 U.S.C. 

§ 6511(b)(2)(B).2

Under 26 U.S.C. § 6511(h), the running of period of

limitations, as provided in § 6511(a) and (b), is suspended while

a taxpayer is unable to manage financial affairs due to a

disability. The statutory notes clarify that § 6511(h) is forward

looking and cannot “apply to any claim for credit or refund which

is barred by operation of law as of the date of the enactment of

the act,” that being July 22, 1998. See IRS Restructuring and

Reform Act of 1998, Pub.L. 105-206, Sec. 3201(b), 112 Stat, 741

(1998). 

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3 The court excludes from this discussion the credits that

were applied in 2003 for the 1993 and 1994 tax years. The 2003

credits are discussed infra. 

6

B. PLAINTIFF’S CLAIMS FOR REFUNDS INVOLVING THE 1993 THROUGH

1995 TAX YEARS

Defendant moves to dismiss plaintiff’s claim for refunds

involving the 1993 through 1995 tax years. Defendant maintains

that plaintiff cannot rely on §6511(h) because all the claims for

the 1993 through 1995 tax years are time barred under 6511(a) and

(b) as of July 22, 1998, the effective date of § 6511(h). 

Defendant also argues that the credit applied in 2003 to the 1993

and 1994 tax years cannot be claimed by plaintiff because the

credit was applied after the plaintiff filed his claim. Plaintiff

contends that the claims involving the years 1993 through 1995 were

timely and that plaintiff can claim the credit that was applied in

2003. 

1. Claims Involving Refund Of Overpayments For The

1993-1995 Tax Years 

Below the court concludes that defendant’s motion to dismiss

with respect to plaintiff’s claim for refunds of overpayments or

credits that were either paid or applied in the 1993 through 1995

tax years must be granted.3 

Plaintiff argues that although Tison filed no tax returns, he

could, but for his disability, have filed a return and claim that

would not have been barred as of July 22, 1998. Pl.’s Opp’n at

5:12-19. While the factual premise may be correct, the conclusion

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4 As far as the court can discern, there was no overpayment

for the 1995 tax year. If there was, the same analysis would

apply: any claim for overpayment would have to have been made by

April 15, 1998.

5 The court notes in passing that even if the court adopted

the plaintiff’s reasoning, the claim for the refund would still be

barred. Assuming arguendo that Tison did file a return in 1996

for the 1993 tax and subsequently filed a claim under 6511(a) for

a refund, the claim would still be barred under 6511(b), which

limits the amount of recovery to the two years directly preceding

the year the claim was filed.

7

plaintiff draws from that fact is not.

Under § 6511(a), since Tison never filed a tax return, he had

two years to bring a claim for the overpayment, i.e. until April

15, 1996 for the 1993 tax year and until April 15, 1997 for the

1994 tax year.4 It is undisputed that Tison brought no claim

during those two years; and accordingly, plaintiff cannot invoke

§ 6511(h) because the claim was barred by operation of law on July

22, 1998, the effective date of the statute. As noted above,

§ 6511(h) is a forward looking provision and cannot “apply to any

claim for credit or refund which is barred by operation of law as

of the date of the enactment of the act,” that being July 22, 1998.

See IRS Restructuring and Reform Act of 1998, Pub. L. 105-206, Sec.

3201(b), 112 Stat, 741 (1998). 

 Similarly, plaintiff himself cannot now invoke § 6511(h)

because, even though plaintiff’s 2003 claim is not barred by

6511(a), the claim is barred by 6511(b), the limiting provision.

For these reasons, the plaintiff’s claim for refunds for

overpayment and credit applied in the 1993 through 1995 tax years

must be dismissed.5

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ii. Credits Applied In 2003 To The 1993 And 1994 Tax Years

The parties dispute whether the court has jurisdiction over

credits that were applied in March of 2003 to the 1993 and 1994 tax

year accounts. As the court understands the issue, there is a

dispute as to when exactly plaintiff claimed the refund for these

tax credits. 

In January 2003, plaintiff filed tax returns for the 1993

through 1995 and 1999 through 2001 tax years. All claims for

credits and overpayments applied for the 1993 through 1995 tax

years, however, were barred under § 6511(b), see infra at 6-7,

except the credit that was applied in 1998, which is not part of

this motion.

In March of 2003, the IRS applied credit to the 1993 and 1994

tax years. After March, 2003, a claim for these credits would not

be barred under 6511(a) or (b). In other words, the credits were

applied in March of 2003 and under 6511(a), plaintiff has until

January of 2006 to file a claim for these credits. Put directly,

the July 2003 letter plaintiff directed to the IRS was a claim for

the credits that were applied in March. Defendant’s argument to

the contrary is not persuasive. 

Defendant contends that in January of 2003, plaintiff filed

tax returns for 1993 and 1994 and simultaneously requested a refund

for overpayment credit. As defendant notes, § 6511(a)

“necessarily, allows for refunds of payments (or credits) that are

paid (or applied) before the claim for the refund was made, not

after.” Def.’s Reply at 4:13-14. Thus, defendant contends,

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because the credits were applied after the plaintiff made his

request in January of 2003, plaintiff cannot now seek a refund of

those credits. The court does not agree.

Plaintiff maintains that his letter to the IRS dated July 22,

1998, Def.’s Mot. to Dism., Ex. M, was a claim for the refund and

thus was made after the credits were applied in March.

Accordingly, he argues that his claim covers these credits.

The question before the court is how to view the July 2003 letter

and whether the letter states a claim that encompasses the 2003

credits. 

Defendant’s argument that the letter is merely a follow-up is

unpersuasive. There was an intervening event, namely the

application of the credit. The letter is connected to the tax

returns filed in January. The letter was a formal request to the

IRS demanding a refund of overpayments and credits for all the tax

years at issue. Although the court is not now in a position to

determine the merits of the claim, it seems clear that the credits

applied in March of 2003 are included in the plaintiff’s July 2003

request.

Since the plaintiff’s claim for the credits applied in 2003

is not barred under 6511(a) and (b), the court has jurisdiction

over plaintiff’s claim for these specific credits. Accordingly,

the court will deny defendant’s motion to dismiss with respect to

the credits applied in 2003 to the 1993 and 1994 tax years.

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C. PLAINTIFF’S CLAIMS FOR REFUNDS INVOLVING THE 1999 THROUGH

2001 TAX YEARS

Defendant claims that the court lacks subject matter

jurisdiction over plaintiff’s claims for refunds for the tax years

1999-2001 and thus claims pertaining to these years should be

dismissed. Specifically, defendant argues that Tison had tax

liabilities for all three of these years and that his liabilities

were higher than the taxes paid for each of the years. Therefore,

there can be no refund because there was no overpayment. Def.’s

Mot. to Dism. at 10:3-6. 

Plaintiff states in his opposition brief that he “does not

oppose the motion as to the later years 1999-2001, as no claim for

refund is actually made for any of these years.” Pl.’s Opp’n at

3:16-17. 

Upon review of plaintiff’s complaint, it appears that

plaintiff did not seek a refund of overpayment with respect to the

tax years 1999-2001. For this reason, the court will deny

defendant’s motion to dismiss plaintiff’s claims for refunds for

the 1999 through 2001 tax years. 

D. PLAINTIFF’S CLAIM THAT THE PENALTIES AND INTEREST ASSESSED

FOR THE 1999 TAX YEAR SHOULD BE ABATED

Defendant moves to dismiss plaintiff’s claim that the

penalties and interests assessed for the 1999 tax year be abated

because those taxes, penalties and interest have not been fully

paid. Specifically, defendant explains that a taxpayer must fully

pay all assessed taxes, penalties, and interests before filing a

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6 The court notes that plaintiff did in fact request that the

interests and penalties assessed in the years 1993 and 1996 in the

amount of $30,526.36 be abated and refunded, see Compl. at 3:27-

4:3, but there is no similar request for the 1999 tax year.

11

suit to seek a refund. Since plaintiff has not fully paid the

taxes for the 1999 tax year, plaintiff’s claim for a refund

involving the penalties and interests assessed for the 1999 tax

year is barred. Def.’s Mot. to Dism. at 10:14-21.

Plaintiff does not address this issue in his opposition

memorandum. Instead, plaintiff states that “as to tax years 1999

through 2001, plaintiff does not oppose Defendant’s motion.”

Pl.’s Opp’n at 7:17-18. 

Upon review of plaintiff’s complaint, it appears that

plaintiff never requested that the interests and penalties be

abated with respect to the 1999 tax year6. Given that plaintiff

never raised this claim in his complaint, there is no claim to

dismiss. For this reason, the court denies defendant’s motion with

respect to plaintiff’s claims for abating the penalties and

interests for the 1999 tax year.

IV.

ORDERS

For all the foregoing reasons, the court hereby ORDERS as

follows:

1. Defendant’s motion to dismiss plaintiff’s claim for

refunds for the 1993-1995 tax years, excluding the credit

applied in 1998 and in March 2003, is GRANTED.

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2. Defendant’s motion to dismiss plaintiff’s claim for

refunds for the 1999-2001 tax years is DENIED.

3. Defendant’s motion to dismiss plaintiff’s claim that

the penalties and interest assessed for the 1999 tax year should

be abated is DENIED.

IT IS SO ORDERED.

DATED: October 18, 2005

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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