IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CAROL HENRY, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1409-D

VS. §

 §

UNITED STATES OF AMERICA, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

The dispositive question presented in this income tax refund

suit is whether the plaintiff-taxpayer has adduced evidence that

meets the regulatory requirements for establishing financial

disability due to a medical impairment and thus permits the finding

that the limitations period for filing her refund claim was tolled.

Concluding that she has not, the court grants the government’s

motion for summary judgment and dismisses the case with prejudice.

I

The underlying facts in this case are largely undisputed. On

April 15, 1999 plaintiff Carol Henry (“Henry”) filed a timely

request for an extension of time to file her federal income tax

return for the 1998 tax year. She received an extension until

August 15, 1999 to file. Henry made several tax payments for the

1998 year, with the last being made on April 15, 1999. Henry was

diagnosed with follicular lymphoma cancer on August 22, 2002.

On April 17, 2003 Henry filed her 1998 income tax return, in

which she claimed a refund of $17,234.00 for the 1998 tax year.

 

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1

It may have been more precise for the government to assert as

the ground for its motion the premise that Henry’s suit is barred

by sovereign immunity. This is a little moment, however, because

the question whether sovereign immunity applies turns on whether

Henry’s suit is time-barred. The motion thus presents the precise

issue to be resolved in addressing whether the United States has

waived sovereign immunity in the circumstances of this case. 

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After the Internal Revenue Service (“IRS”) denied her refund claim,

she filed this suit. The government moves for summary judgment,

contending the suit is barred by limitations.1 It maintains that

she cannot show that she was “financially disabled” before August

15, 2002, the date by which her refund claim should have been

filed.

II

It is settled that the United States, as a sovereign, is

immune from suit unless it consents to be sued. United States v.

Dalm, 494 U.S. 596, 608 (1990) (quoting United States v. Testan,

424 U.S. 392, 399 (1976)). “[T]he terms of its consent to be sued

in any court define that court’s jurisdiction to entertain the

suit.” Id. (internal quotation marks omitted) (quoting Testan, 424

U.S. at 399). “A statute of limitations requiring that a suit

against the Government be brought within a certain time period is

one of those terms.” Id. (citing cases). “A party bringing a

cause of action against the federal government bears the burden of

showing an unequivocal waiver of immunity.” Baker v. United

States, 817 F.2d 560, 562 (9th Cir. 1987) (addressing sovereign

immunity in context of Federal Tort Claims Act) (citing Holloman v.

 

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Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)); see also Lundeen v.

Mineta, 291 F.3d 300, 304 (5th Cir. 2002) (addressing sovereign

immunity in context of Administrative Procedure Act) (“The burden

is on [plaintiff] to show such consent, because he is the party

asserting federal jurisdiction.” (citing Stockman v. Fed. Election

Comm’n, 138 F.3d 144, 151 (5th Cir. 1998)).

 “[26 U.S.C. §] 7422 provides for a civil action for refund of

certain wrongfully collected taxes.” Beall v. United States, 336

F.3d 419, 422 (5th Cir. 2003). Under § 7422, 

[n]o suit or proceeding shall be maintained in

any court for the recovery of any internal

revenue tax alleged to have been erroneously

or illegally assessed or collected, or of any

penalty claimed to have been collected without

authority, or of any sum alleged to have been

excessive or in any manner wrongfully

collected, until a claim for refund or credit

has been duly filed with the Secretary [of the

Treasury], according to the provisions of law

in that regard, and the regulations of the

Secretary established in pursuance thereof.

“[28 U.S.C. §] 1346 operates in conjunction with 26 U.S.C. § 7422

to provide a waiver of sovereign immunity in tax refund suits

. . . when the taxpayer has fully paid the tax and filed an

administrative claim for a refund.” Shanbaum v. United States, 32

F.3d 180, 182 (5th Cir. 1994). 

“[U]unless a claim for refund of a tax has been filed within

the time limits imposed by § 6511(a), a suit for refund, regardless

of whether the tax is alleged to have been ‘erroneously,’

‘illegally,’ or ‘wrongfully collected,’ may not be maintained in

 

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any court.” Dalm, 494 U.S. at 602 (citations omitted) (quoting 28

U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422(a), and citing United

States v. Kales, 314 U.S. 186, 193 (1941)). Section 6511(a)

provides, in pertinent part, that a 

[c]laim for credit or refund of an overpayment

of any tax imposed by this title in respect of

which tax the taxpayer is required to file a

return shall be filed by the taxpayer within 3

years from the time the return was filed or 2

years from the time the tax was paid,

whichever of such periods expires the later

. . . .

 

26 U.S.C. § 6511(b) imposes a substantive limit on the amount

of the refund a taxpayer can collect. This “look back” provision

states: 

If the claim was filed by the taxpayer during

the 3-year period prescribed in subsection

(a), the amount of the credit or refund shall

not exceed the portion of the tax paid within

the period, immediately preceding the filing

of the claim, equal to 3 years plus the period

of any extension of time for filing the

return. 

26 U.S.C. § 6511(b)(2)(A). Accordingly,

[f]or a taxpayer who has filed a tax return,

these two provisions establish two limitations

hurdles. First, the taxpayer must demonstrate

that he or she filed a claim for refund within

3 years of the time the tax return was filed.

Second, the taxpayer must show that any

amounts sought as refund were actually paid in

the 3 year period immediately preceding the

filing of the claim.

Mills v. United States, 805 F. Supp. 448, 450 (E.D. Tex. 1992).

26 U.S.C. § 6511(h)(1) provides that the running of the

 

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limitations period for filing a claim for a tax refund “shall be

suspended during any period of such individual’s life that such

individual is financially disabled.” The statute states, in

pertinent part, that

an individual is financially disabled if such

individual is unable to manage his financial

affairs by reason of a medically determinable

physical or mental impairment of the

individual which can be expected to result in

death or which has lasted or can be expected

to last for a continuous period of not less

than 12 months. An individual shall not be

considered to have such an impairment unless

proof of the existence thereof is furnished in

such form and manner as the Secretary [of the

Treasury] may require.

26 U.S.C. § 6511(h)(2)(A) (emphasis added). 

The IRS has promulgated procedures for establishing financial

disability, and they require that a taxpayer submit a written

statement by a physician qualified to make the determination that

sets forth:

(a) the name and a description of the

taxpayer’s physical or mental impairment;

(b) the physician’s medical opinion that the

physical or mental impairment prevented the

taxpayer from managing the taxpayer’s

financial affairs;

(c) the physician’s medical opinion that the

physical or mental impairment was or can be

expected to result in death, or that it has

lasted (or can be expected to last) for a

continuous period of not less than 12 months;

(d) to the best of the physician’s knowledge,

the specific time period during which the

taxpayer was prevented by such physical or

mental impairment from managing the taxpayer’s

financial affairs; and

(e) the following certification, signed by the

 

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physician: I hereby certify that, to the best

of my knowledge and belief, the above

representations are true, correct, and

complete.

Rev. Proc. 99-21, 1991-1 C.B. 960.

III

Because a tax return that claims a refund is treated as a

refund claim, Henry’s 1998 income tax return, filed on April 17,

2003, constitutes a claim for a refund and satisfies the temporal

requirement of 26 U.S.C. § 6511(a). Henry received a four-month

extension to file her 1998 income tax return. Her latest payment

for the 1998 tax year occurred on April 15, 1999. Under § 6511(b),

to obtain a refund of the amount Henry paid on April 15, 1999, she

would have to have filed her refund claim (here, in the form of her

tax return) within three years and four months from the date of

that payment. In other words, she was required to have filed her

refund claim by August 15, 2002. In filing her tax return on April

17, 2003, Henry missed the statutory deadline by approximately

eight months. 

Henry does not dispute that the deadline for filing her claim

for a refund would normally have expired on August 15, 2002. She

maintains, however, that although she was tentatively diagnosed

with follicular lymphoma cancer eight days after the deadline, she

suffered financial disability for several months beforehand, and

the limitations period was tolled pursuant to 26 U.S.C. § 6511(h)

during the period of her physical impairment.

 

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The government argues that it is entitled to summary judgment

because, inter alia, Henry was diagnosed with cancer after the date

for filing her claim for a refund had expired, and she has not met

her burden of establishing entitlement under the financial

disability provision of 26 U.S.C. § 6511(h) to toll the period

before her diagnosis. Specifically, it maintains that Henry has no

evidence that she has complied with the physician’s statement

requirements set forth in Revenue Procedure 99-21. Therefore, the

government argues that Henry’s claim for a tax refund is barred by

limitations.

In response to the government’s motion for summary judgment,

Henry has produced letters from two physicians, neither of whom was

her treating physician during the time she allegedly suffered

financial disability, and both letters are dated in September 2006.

The first letter, from Houston Holmes, M.D. (“Dr. Holmes”), states,

in relevant part:

I did not see [Henry] in this office until

November 2002, so I can only speculate

regarding her condition before that time. It

is possible that her symptoms could have been

severe enough to render her unable to manage

her personal or financial affairs. I do not

know if this is the case with Mrs. Henry. She

initiated treatment for her lymphoma shortly

after we saw her in November 2002.

P. App. 25 (emphasis added). This statement does not comply with

the requirement of Revenue Procedure 99-21, because the letter

neither contains Dr. Holmes’s medical opinion that Henry’s physical

 

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impairment prevented her from managing her financial affairs, as

required under Revenue Procedure 99-21 Sec. 4(b), nor does it

state, to the best of Dr. Holmes’s knowledge, the specific time

period during which Henry was prevented by such physical impairment

from managing her financial affairs, as required under Sec. 4(d).

Dr. Holmes merely opines that it is possible that her symptoms

could have been severe enough to render her unable to manage her

financial affairs, but he does not know.

The second letter Henry submitted is from Fay Elaine Simon,

M.D. (“Dr. Simon”). Dr. Simon was not Henry’s treating physician,

and she states that she “was not involved in the care of Ms. Henry

before or during her cancer diagnosis. No medical history has been

gathered and no exam has been performed by me on her to date.” P.

App. 26. Dr. Simon based her letter on her review of Henry’s old

charts, which she obtained from Judy Jordan, M.D. (“Dr. Jordan”),

Henry’s former physician, at the time Dr. Jordan retired. Dr.

Simon’s letter generally recounts the notes from Dr. Jordan’s

examination of Henry on August 22, 2002. Although Dr. Jordan’s

chart describes in detail the symptoms of the disease that Henry

had been experiencing, it nowhere contains Dr. Jordan’s (or Dr.

Simon’s) medical opinion that Henry’s physical impairment prevented

her from managing her financial affairs, nor does it state, to the

best of Dr. Jordan’s (or Dr. Simon’s) knowledge, the specific time

period during which Henry was prevented by such physical impairment

 

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from managing her financial affairs. 

Henry has also produced various affidavits, including from her

children, herself, and her certified public accountant, that

describe her physical impairments and her inability to manage her

financial affairs. This evidence does not satisfy the physicianstatement requirement of Revenue Procedure 99-21. It is the

physician’s medical opinion that the taxpayer’s physical impairment

prevented her from managing her financial affairs that is necessary

to claim financial disability under Revenue Procedure 99-21. The

taxpayer’s own opinion, or the opinion of one who is not qualified

to offer a medical opinion, cannot satisfy the procedural

requirements. See Lundeen, 291 F.3d at 304 (“Consequently, no suit

may be maintained against the United States unless the suit is

brought in exact compliance with the terms of a statute under which

the sovereign has consented to be sued.” (citing Koehler v. United

States, 153 F.3d 263, 265 (5th Cir. 1998)). 

The court therefore concludes that Henry has not met her

burden of showing that she complied with the procedural

requirements of Revenue Procedure 99-21. Specifically, she has

produced no physician’s written statement that her physical

impairment prevented her from managing her financial affairs, or

that states the specific time period during which she was prevented

by such physical impairment from managing her financial affairs.

The court takes as true Henry’s representation that she did

 

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not develop Lymphoma cancer in fewer than eight days. In fact,

Henry has produced evidence that she suffered the symptoms of the

cancer long before the actual diagnosis on August 22, 2002. But

while the court in no sense intends to denigrate the seriousness of

her cancer, it cannot deprive the United States of sovereign

immunity where she has failed to produce a physician’s medical

opinion that she suffered from a physical impairment that prevented

her from managing her financial affairs during any period prior to

the August 15, 2002 filing deadline and that specifies the period,

as required by Revenue Procedure 99-21. Henry has therefore failed

to adduce evidence that would permit the finding that the

limitations period was tolled under 26 U.S.C. § 6511(h). Because

her refund claim is untimely, she has failed to fall within the

statutory waiver of sovereign immunity, and the court lacks

jurisdiction in this case.

 

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2

See Frigard v. United States, 862 F.2d 201, 204 (9th Cir.

1988) (per curiam) (“Ordinarily, a case dismissed for lack of

subject matter jurisdiction should be dismissed without prejudice

so that a plaintiff may reassert his claims in a competent court.

Here, however, the bar of sovereign immunity is absolute: no other

court has the power to hear the case, nor can the [plaintiffs]

redraft their claims to avoid the exceptions to the [Federal Tort

Claims Act].” (citation omitted)); see also Bloomquist v. Brady,

894 F. Supp. 108, 116 (W.D.N.Y. 1995) (“A dismissal based on

sovereign immunity is a decision on the merits, as it determines

that a party has no cause of action or substantive right to recover

against the United States.”).

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* * *

 The government’s October 6, 2006 motion for summary judgment

is granted, and this action is dismissed with prejudice2

 by

judgment filed today.

SO ORDERED. 

December 26, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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