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The Honorable Charles R. Wolle, Chief Judge, United States

District Court for the Southern District of Iowa.

___________

No. 95-1899

___________

Moshe Baruch Git; Judith Beyla *

Git, *

 *

Appellants, *

 * Appeal from the United States

v. * District Court for the

 * Southern District of Iowa.

Department of the Treasury; *

Internal Revenue Service; United * [UNPUBLISHED]

States of America, *

 *

Appellees. *

___________

 Submitted: December 26, 1995

 Filed: January 4, 1996 ___________

Before BOWMAN, BEAM, and MURPHY, Circuit Judges. ___________

PER CURIAM.

Moshe B. Git and his wife, Judith B. Git, appeal the district

court's1 dismissal of their complaint seeking a refund of 1986

taxes, damages for emotional distress, and punitive damages. We

affirm.

The Gits filed suit seeking the refund, with interest, of

$2,087.82 withheld from Mr. Git's earnings in 1986, emotional

distress and punitive damages, and costs. They named the

Department of the Treasury; the Internal Revenue Service; Lloyd

Bentsen, Secretary of the Treasury; and Margaret Milner Richardson,
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Commissioner of the Internal Revenue Service. The Gits later added

the United States as a defendant.

The Gits alleged a disabling illness prevented Mr. Git from

completing the couple's 1986 joint tax return and Mrs. Git lacked

the knowledge to do so. They further alleged when Mr. Git

conferred by telephone with an IRS agent regarding a filing

extension, the agent told him "there was no need for a formal

extension of time to file, since [he] could file at anytime and not

lose anything." The Gits maintained they relied upon the agent's

advice, and filed their 1986 tax return on April 15, 1991, but were

denied their $2,087.82 refund.

The district court dismissed the Gits' claim for emotional

distress and punitive damages as to the United States and the Gits'

tax refund claim as to the IRS, Department of the Treasury, Bentsen

and Richardson. After the United States was substituted for

Bentsen and Richardson, the district court dismissed the remaining

claims, concluding the tax refund claim was time-barred, and the

emotional distress and punitive damages claims were barred by

sovereign immunity.

The dismissal of a complaint under Federal Rule of Civil

Procedure 12 for failure to state a claim or lack of subject matter

jurisdiction is reviewed de novo. Alexander v. Peffer, 993 F.2d

1348, 1349 (8th Cir. 1993) (failure to state a claim); Schneider v.

United State, 27 F.3d 1327, 1331 (8th Cir. 1994) (subject matter

jurisdiction), cert. denied, 115 S. Ct. 723 (1995). 

The circuits are split on whether the limitations periods in

section 6511 may be equitably tolled. Compare Brockamp v. United

States, 67 F.3d 260 (9th Cir. 1995) (holding tolling allowed) with

Webb v. United States, 66 F.3d 691 (4th Cir. 1995) (no tolling

allowed) and Oropallo v. United States, 994 F.2d 25 (1st Cir. 1993)

(no tolling allowed). We do not decide the issue here because,
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even if the limits contained in 26 U.S.C. § 6511 can be equitably

tolled, the Gits do not qualify for such relief. We conclude that

neither the IRS's bad advice nor Mr. Git's poor health provides

sufficient grounds for equitable tolling against the government.

See Miller v. Runyon, 32 F.3d 386, 389 (8th Cir. 1994); Medellin v.

Shalala, 23 F.3d 199, 204 (8th Cir. 1994) (misconduct on

government's part or gross, but good faith, error on claimant's

part is necessary to justify equitable tolling); see also Irwin v.

Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (tolling has

been allowed only where party filed timely but defective pleading,

and where adversary has tricked or induced party to let deadline

pass). We also note the Gits have offered no explanation, other

than her unfamiliarity with the couple's finances, why Mrs. Git

could not have pursued the couple's refund.

Likewise, the IRS agent's misstatement of the law was not

affirmative misconduct that would estop the government from

asserting section 6511's limitations period. See Olsen v. United

States, 952 F.2d 236, 241-42 (8th Cir. 1991) (party did not show

affirmative act where IRS agents erroneously told him IRS held

superior lien on his property); United States v. Manning, 787 F.2d

431, 436-37 (8th Cir. 1986) (no affirmative misconduct even if

government agent erroneously misled party about legality of hunting

geese in baited fields).

The district court properly rejected the Gits' argument that,

under United States v. Dubuque Packing Co., 233 F.2d 453 (8th Cir.

1956), the money they seek is a deposit and not "tax money" within

the reach of section 6511. See United States v. Dalm, 494 U.S.

596, 609 n.6 (1990) (refusing to distinguish between suits for

refunds and suits for funds wrongfully retained; noting that § 6511

applies to all overpayments of taxes). The district court also

properly concluded that sovereign immunity bars the Gits' claim for

emotional distress and punitive damages, as their claims all arise

from the denial of their refund and allegedly erroneous information
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given them by the IRS. See 28 U.S.C. § 2680(c) (excepts from the

FTCA's waiver of sovereign immunity, "claim[s] arising in respect

of the assessment or collection of any tax"); 28 U.S.C. § 2674

(barring recovery of punitive damages from the government).

The district court did not abuse its discretion in denying the

Gits' request for an indefinite abeyance and in granting

defendants' motion to dismiss without giving the Gits a further

opportunity to respond. See Watson v. Miears, 772 F.2d 433, 437

(8th Cir. 1985) (standard of review). Further, the district court

properly substituted the United States as defendant for Bentsen and

Richardson. See 28 U.S.C. § 2679(b)(1) (barring Federal Tort

Claims Act suits against government employees for acts and

omissions occurring within the scope of their employment or

office). 

The parties' motions to file supplemental briefs are denied.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.