United States Court of Appeals 

for the Federal Circuit ______________________ 

VENSURE HR, INC.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2023-1640

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:20-cv-00728-PEC, Judge Patricia E. CampbellSmith.

______________________ 

Decided: October 4, 2024

______________________ 

RIC HULSHOFF, Ric Hulshoff Attorney at Law, PLLC, 

Henderson, NV, argued for plaintiff-appellant. Also represented by JASON M. SILVER, Silver Law, PLC, Scottsdale, 

AZ. 

 ISAAC B. ROSENBERG, Tax Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRUCE R. ELLISEN,

DAVID A. HUBBERT. 

______________________ 

Before PROST, CLEVENGER, and CHEN, Circuit Judges.

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2 VENSURE HR, INC. v. US

PROST, Circuit Judge. 

Vensure HR, Inc. (“Vensure”) appeals the final judgment of the U.S. Court of Federal Claims dismissing Vensure’s complaint for failing to state a claim upon which 

relief could be granted. Vensure HR, Inc. v. United States, 

164 Fed. Cl. 276 (2023) (“Decision”). 

This case involves the procedural mechanisms for filing 

a tax refund for penalties under the Internal Revenue 

Code. Vensure filed certain tax-penalty-refund claims, 

which the Internal Revenue Service (“IRS”) denied on their 

merits. Then, when Vensure filed a complaint in the Court 

of Federal Claims, the IRS sought to dismiss the complaint 

based on a procedural flaw with Vensure’s claims—namely, 

that Vensure had failed to “attach” a power of attorney to 

those claims. Despite having already filed two powers of 

attorney that potentially covered these tax claims, the 

Court of Federal Claims dismissed Vensure’s case on the 

sole basis that a power of attorney was not “attached” to 

the claims at the time of filing. The question before us is 

whether the regulation that requires a power of attorney to 

“accompany” a claim is an explicit statutory requirement, 

which cannot be waived, or is purely regulatory in nature 

and thus waivable. We conclude that 26 C.F.R. 

§ 301.6402-2(e)’s requirement that “a power of attorney 

must accompany the claim” is regulatory and not statutory. 

Therefore, this requirement may be waived by the IRS in 

certain circumstances. In other words, while the IRS may

demand strict compliance with its regulations, when it fails 

to do so, and instead addresses a claim on its merits, the 

requirement may be waived. For the reasons below, we vacate and remand for further proceedings.

BACKGROUND

I 

Vensure is a professional-employer organization that 

provides other companies with services to outsource 

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VENSURE HR, INC. v. US 3

employee-management tasks, including payroll and tax reporting services. As part of the tax reporting services, Vensure withholds, reports, and pays employment-related 

taxes on behalf of companies to the IRS.

In the second quarter of 2014, Vensure reported and 

paid employment taxes. Believing those payments to be an 

overpayment of more than $3.7 million, Vensure filed tax 

refund claims with the IRS in October 2014 and June 

2015.1 App’x 61.2 Vensure alleges that these overpayments “led to Vensure’s inability to timely pay” taxes for 

later periods. App’x 62. As a result of the belated payments, the IRS assessed tax penalties amounting to more 

than $1.5 million. App’x 47.

Vensure fully paid the belated tax payments and penalties but sought a refund or abatement of the tax penalties

through the filing of six IRS Forms 843 in March 2016. 

App’x 34–39 (collectively, the “penalty-refund claims”). 

When a Form 843 is filed by a corporation, like Vensure, 

the form must generally be signed by “a corporate officer 

authorized to sign.” E.g., App’x 34. But the IRS “Instructions for Form 843” also allow an authorized representative 

to sign and file Form 843 on behalf of the taxpayer. Here, 

each of the Forms 843 was signed by Chris J. Sheldon, an 

attorney representing Vensure in the preparation of various tax forms. 

When a legal representative signs a tax form on behalf 

of a taxpayer, a power of attorney must grant the legal representative authority to execute the claims. Form 2848 

may be used to grant a power of attorney “to authorize an 

individual to represent you before the IRS.” App’x 158. 

1 The IRS granted a refund of approximately 

$750,000 in overpayments. App’x 50.

2 “App’x” refers to the appendix filed by Vensure 

(ECF No. 13). 

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4 VENSURE HR, INC. v. US

Specifically, the instructions to Form 843 state: “If [the taxpayer’s] authorized representative files Form 843, the original or copy of Form 2848, Power of Attorney and 

Declaration of Representative, must be attached.” 

S.App’x 2.3 It is undisputed here that Vensure did not concurrently attach a Form 2848 to any of the six penalty-refund claims at the time of filing. There were, however, at 

least three Forms 2848 filed with the IRS at various points 

in time that purport to give Mr. Sheldon power of attorney 

over Vensure’s penalty-refund claims. Vensure identifies 

two Forms 2848 executed in 2015 and faxed to the IRS’s 

Centralized Authorization File (“CAF”) unit.4 And, in 

2017, Vensure sent the IRS a formal protest for the disallowance of the penalty-refund claims and attached a power 

of attorney, confirming that Silver Law, where Mr. Sheldon 

was employed, represents Vensure for the tax periods and 

penalties at issue here. See S.App’x 15.

In 2018, the IRS denied Vensure’s penalty-refund 

claims because Vensure had not met a “reasonable cause” 

exception to avoid the penalties. App’x 40–46; App’x 48; 

App’x 64. In denying these claims, the IRS sent its decision 

letters to Mr. Sheldon “under the provisions of your power 

of attorney or other authorization we have on file.” 

App’x 40; App’x 43.

II

After pursuing administrative remedies at the IRS, 

Vensure filed a complaint in the Court of Federal Claims

in June 2020, seeking a refund of the penalties imposed 

3 “S.App’x” refers to the supplemental appendix filed 

by the government (ECF No. 21). 

4 “The CAF is a computerized system of records 

which houses authorization information from both powers 

of attorney and tax information authorizations.” Appellee’s 

Br. 29 (cleaned up). 

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VENSURE HR, INC. v. US 5

and collected by the IRS. App’x 47. In response, the government, as defendant, filed a series of motions to dismiss: 

the first two were denied without prejudice, but the third

motion, at issue here, was granted. In this third and final 

motion, the government moved to dismiss Vensure’s complaint under Rule 12(b)(1) of the Rules of the U.S. Court of 

Federal Claims (“RCFC”) for lack of subject-matter jurisdiction because Vensure’s penalty-refund claims were not 

“duly filed” under 26 U.S.C. § 7422(a). See App’x 83–85. 

The government asserted that there were two “flaws” with 

Vensure’s claims: (1) Vensure had not signed and verified 

the claims under 26 U.S.C. §§ 6061(a) and 6065, and 

(2) Vensure had not attached a power of attorney to the 

Forms 843 for refund that would permit Mr. Sheldon to 

sign those forms and properly submit the claims. Appellee’s Br. 11. Vensure’s response argued, among other 

things, that Brown v. United States, 22 F.4th 1008 (Fed. 

Cir. 2022), confirmed that § 7422(a) is non-jurisdictional

and that Vensure “substantially complied” with the power 

of attorney requirement with the filing of its previous 

Forms 2848. Decision, 164 Fed. Cl. at 285. 

The Court of Federal Claims agreed with Vensure that 

§ 7422(a) is non-jurisdictional but “convert[ed] defendant’s 

jurisdictional motion into a motion to dismiss pursuant to 

RCFC 12(b)(6).” Id. at 284. Then, relying on § 7422(a), 26 

C.F.R. § 301.6402-2(e), Brown, and various IRS instructions, the Court of Federal Claims determined that Vensure had “failed to ‘duly file’ its refund claims” because “a 

valid power of attorney must be submitted together with a 

refund claim” and Vensure “failed to attach to its refund 

claims any power of attorney forms.” Id. at 286–87. The 

Court of Federal Claims further determined that this attachment requirement is statutory and thus cannot be 

waived. Id. at 288. The Court of Federal Claims then 

granted the government’s motion to dismiss. 

Vensure timely appeals, and we have jurisdiction under 28 U.S.C. § 1295(a)(3).

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6 VENSURE HR, INC. v. US

DISCUSSION

We review de novo whether the Court of Federal 

Claims properly dismissed a complaint for failure to state 

a claim. See Dixon v. United States, 67 F.4th 1156, 1165 

(Fed. Cir. 2023). 

Vensure raises three issues on appeal: (1) whether 26 

C.F.R. § 301.6402-2(e)’s requirement that “a power of attorney must accompany the claim” (i.e., the “accompany” 

requirement) means a power of attorney must be attached

to the claim for refund; (2) whether § 301.6402-2(e)’s use of 

“accompany” is a statutory, non-waivable requirement or is

regulatory and thus waivable; and (3) whether the IRS 

waived the “accompany” requirement of § 301.6402-2(e)

here. 

The parties each provide their own definitions of “accompany” within the context of § 301.6402-2(e). Vensure 

argues that “accompany” means “relevant,” “on file and . . . 

existing at the time, valid, and sufficient to authorize the 

signing of the . . . Form 843.” Oral Arg. at 1:34‒49.5 The 

government argues that “accompany” means “attach.” 

E.g., Appellee’s Br. 20. But we need not construe “accompany” to resolve this dispute. Instead, we first address 

Vensure’s second issue and conclude that § 301.6402-2(e)’s 

“accompany” requirement is regulatory and waivable. We 

then provide guidance to the Court of Federal Claims to 

determine on remand whether the IRS waived the “accompany” requirement of § 301.6402-2(e) here. 

I 

The Supreme Court has distinguished between “explicit statutory requirements” and “detailed administrative 

regulations” governing tax refund procedures. Angelus 

5 No. 23-1640, https://oralarguments.cafc.uscourts.

gov/default.aspx?fl=23-1640_07092024.mp3. 

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VENSURE HR, INC. v. US 7

Milling Co. v. Comm’r, 325 U.S. 293, 296 (1945). “Insofar 

as Congress has made explicit statutory requirements, 

they must be observed and are beyond the dispensing 

power of Treasury officials.” Id. In contrast, where a requirement is regulatory in nature, the Commissioner of the 

IRS may “insist upon full compliance with his regulations,” 

or those requirements may, under certain circumstances, 

be waived. Id. “The basis of this claim of waiver is that the 

Commissioner through his agents dispensed with the formal requirements of a claim by investigating its merits.” 

Id. 

In Angelus Milling, the Supreme Court drew a clear 

distinction between “explicit statutory requirements” contained in statutes enacted by Congress concerning the collection of taxes and “[t]he effective administration of these 

modern complicated revenue measures [which] inescapably leads Congress to authorize detailed administrative 

regulations by the Commissioner of Internal Revenue.” Id. 

The Supreme Court further emphasized that “Congress 

has given the Treasury this rule-making power for self-protection and not for self-imprisonment,” and “[i]f the Commissioner chooses not to stand on his own formal or 

detailed requirements, it would be making an empty abstraction, and not a practical safeguard, of a regulation to 

allow the Commissioner to invoke technical objections after 

he has investigated the merits of a claim and taken action 

upon it. Even tax administration does not as a matter of 

principle preclude considerations of fairness.” Id. at 297. 

None of the multiple items of necessary factual information 

required by the applicable regulations were submitted by 

the taxpayer in Angelus Milling—only the name and address of the joint claimants and a statement of the dates 

and amounts of the tax payments made by one of the joint 

claimants. Id. at 294 n.2. The specific informational requirements set forth in the multiple regulations involved 

in Angelus Milling were deemed by the Supreme Court to 

be regulatory in nature, subject to waiver by the 

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8 VENSURE HR, INC. v. US

Commissioner, and not statutory commands beyond the 

Commissioner’s discretion to waive. 

To determine whether the “accompany” requirement of 

§ 301.6402-2(e) is statutory or regulatory, and thus 

whether it is waivable, we begin with a review of the relevant statutes and articulate the scope of the “explicit statutory requirements” relevant in this case. We then turn to 

the “accompany” requirement of § 301.6402-2(e) and conclude that it is a purely regulatory requirement. Finally, 

we explain why the government’s interpretation of 

Brown—to require strict compliance with all signature and 

verification regulations—is so broad as to conflict with the 

Supreme Court’s guidance in Angelus Milling. 

A 

We begin with the relevant statutory provisions governing the filing of returns and actions for refunds. The 

parties, and the Court of Federal Claims, cited three.

Section 7422(a), which provides the statutory cause of 

action for a tax refund suit in the Court of Federal Claims,

states:

No 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, according to the provisions of law in that regard, and 

the regulations of the Secretary established in pursuance thereof. 

26 U.S.C. § 7422(a) (emphasis added). Section 6061(a) 

states: “Except as otherwise provided . . . any return, statement, or other document required to be made under any 

provision of the internal revenue laws or regulations shall 

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VENSURE HR, INC. v. US 9

be signed in accordance with forms or regulations prescribed by the Secretary.” Id. § 6061(a) (emphasis added). 

And § 6065 states: “Except as otherwise provided by the 

Secretary, any return, declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be 

verified by a written declaration that it is made under the 

penalties of perjury.” Id. § 6065 (emphasis added). 

In Brown, we concluded that these provisions “impose 

a default rule that individual taxpayers must personally 

sign and verify their income tax refund claims.” 22 F.4th 

at 1012. In light of these statutes and applicable implementing regulations, we also concluded that taxpayers may 

authorize a legal representative to certify the claims and 

provide a valid power of attorney in place of the taxpayer 

signature requirement. See id. at 1013. Brown refers to 

these requirements as the “taxpayer signature and verification requirements.” Id. “Because the taxpayer signature 

and verification requirements derive from statute, the IRS 

cannot waive those requirements.” Id. Notably, however, 

these statutory provisions do not explain when, where, or 

how a taxpayer (or a taxpayer’s authorized representative) 

should comply with these requirements. 

B 

We next look to whether the “accompany” requirement 

of § 301.6402-2(e)—i.e., the requirement that “a power of 

attorney must accompany the claim”—is statutory or regulatory in nature. We conclude that it is a purely regulatory 

requirement that is not reflected in the language of the relevant statutory provisions. We then explain why we find 

the government’s counterarguments unpersuasive. 

1 

The “accompany” requirement at issue presents a regulatory question of when, where, and how to file a power of 

attorney—not whether one is required to be provided in 

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10 VENSURE HR, INC. v. US

lieu of a taxpayer’s signature in the first place. While 

Brown explained that the latter question is statutory, it did 

not address the former. Because, as explained below, the 

statutory provisions do not speak to the when, where, and 

how of filing a power of attorney, we conclude that the “accompany” requirement is regulatory and thus waivable.

We are unaware of any relevant statutory provision 

that establishes requirements for when, where, and how to 

file a power of attorney with the IRS. Nothing in the statutory provisions requires a specific mode of attachment or 

use of a specific electronic filing system like CAF. Nothing 

in the statutory provisions indicates that satisfaction of the 

“signature and verification requirement” must be completed one way for tax returns and another way for tax refund claims. And nothing in the regulatory text suggests 

that the “accompany” requirement echoes the statutory requirements, as was the case in Brown. See 22 F.4th 

at 1013. Instead, the statutory provisions reflect a single 

signature and verification requirement—i.e., that the tax 

forms must be signed and verified by the taxpayer or a person with power of attorney. 

Rather than appearing in a statutory provision, the requirements for when, where, and how a power of attorney 

may accompany a claim are grounded in sub-regulatory 

IRS instructions and publications. For example, 

§ 301.6042-2(e) requires that claims for credits or refund 

must be accompanied by a power of attorney, but it never 

defines “accompany.” The relevant instructions for filing a 

tax refund (using Form 843) states that “Form 2848, Power 

of Attorney and Declaration of Representative, must be attached.” S.App’x 2. Another provision addressing individual tax returns, 26 C.F.R. § 1.6012-1(a)(5), also requires 

that the returns be “accompanied by a power of attorney.” 

But it likewise never defines “accompany,” and the relevant instructions state, “[i]f your return is signed by a representative for you, you must have a power of attorney 

attached . . . .” 1040 (and 1040-SR) Instructions (2023), 

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VENSURE HR, INC. v. US 11

https://www.irs.gov/pub/irs-pdf/i1040gi.pdf. Both sets of 

instructions suggest attachment is necessary, but they do 

not define how a Form 2848 must be attached. 

Indeed, the IRS admits that physical attachment or 

concurrent attachment of Form 2848 is not necessary for 

both tax returns and tax refund claims, despite both regulations’ “accompany” requirement. Recall that the CAF 

system “contain[s] information regarding the authority of 

individuals appointed under powers of attorney.” 

App’x 161. “Generally, the IRS records powers of attorney 

on the CAF system.” App’x 161. But there are certain onetime or specific-issue powers of attorney that the IRS does 

not record on CAF. App’x 161. One such specific use is 

Form 843 (again, the form at issue in this case). App’x 161. 

According to the government, taxpayers may use CAF to 

record Form 2848 for Form 1040 and satisfy the “accompany” requirement but may not use CAF for recording 

Form 2848 for Form 843 to satisfy the “accompany” requirement. Oral Arg. at 23:37–24:25; see also id. at 29:16–

30:08. Thus, despite both regulations requiring a power of 

attorney to “accompany” the claims and both instructions 

suggesting that attachment is necessary, the IRS procedures require physical or concurrent attachment for Form 

843 but not Form 1040. In other words, according to the 

IRS, “accompany” in one circumstance means only physical, concurrent submission, while “accompany” in a separate circumstance means either physical, concurrent 

submission or uploading to CAF. This example highlights 

that the IRS has created procedures to answer the when,

where, and how question derived from IRS instructions, 

publications, and limitations of CAF—not an explicit statutory demand. See id. at 32:48–33:09. And the inconsistent implementation of the when, where, and how of 

filing a power of attorney is not reflected in the statutory 

language.

Thus, beyond the statutory requirement to supply a 

power of attorney when the taxpayer is not signing a tax 

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12 VENSURE HR, INC. v. US

form (as discussed in Brown), the remainder of the “accompany” requirement regarding when, where, and how a taxpayer files a power of attorney is a “detailed administrative 

regulation[],” rather than an explicit statutory mandate. 

See Angelus Milling, 325 U.S. at 296. Therefore, when the 

IRS fails to apply this regulatory requirement in responding to a claim for refund, and instead addresses a claim on 

its merits, the “accompany” requirement may be waived.

2 

The government’s insistence that “accompany” is statutory in nature is undermined by what appears to be design choices between the filing requirements of different 

tax forms and a failure to connect these choices to an explicit statutory requirement. 

For example, the government argues that “CAF could 

not have substituted for a Form 2848 that was physically 

attached to Vensure’s refund claims” essentially because 

“[n]ot all authorizations can be recorded in the CAF. . . . 

CAF does not track authorizations for refund claims filed 

on Form 843.” Appellee’s Br. 28, 30. While the IRS may 

have its purposes for designing such a system, its basis for 

determining when physical attachment is required and 

when it is not (e.g., when its system cannot and can record 

the authorization) is unconnected to an “explicit statutory 

requirement[].” Angelus Milling, 325 U.S. at 296. 

Additionally, when asked at oral argument why a CAF 

filing satisfies the “accompany” requirement for a Form 

1040, the government’s response almost entirely relied on 

(1) how to properly execute a Form 2848, and (2) the CAF 

system’s ability to track authorizations. See Oral Arg. 

at 30:13–47. But when asked why a CAF filing would not 

satisfy the “accompany” requirement for a Form 843, the 

government responded that (1) the actual power of attorney form would be offsite or destroyed and (2) “CAF doesn’t 

track authorizations for Form 843.” Id. at 30:47–31:59. 

When asked why there was a difference in treatment 

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VENSURE HR, INC. v. US 13

between Forms 1040 and Forms 843, the government responded that it is because Form 2848 has specific fields 

that, if properly filled out, would be coded into CAF for a 

Form 1040 but not a Form 843. See id. at 31:58–32:48. The 

government’s attempt at a basis for such a distinction—

that it is a “function of volume” of each type of claim filed—

also has no grounding in an explicit statutory requirement. 

See id. at 35:10–30. 

At bottom, the IRS’s prerogative to design systems and 

processes that suit its needs does not transform regulations 

into statutory provisions.

C 

Our conclusion here is not contrary to Brown. The government places significant weight on Brown’s statement 

that “a taxpayer must satisfy the statutory default rule or 

else comply strictly with the implementing regulations.” 

Appellee’s Br. 19 (quoting Brown, 22 F.4th at 1013). While 

we recognize that this sentence, standing alone, may appear to elevate to statutory status every IRS regulation addressing signature and verification requirements, we do 

not agree such a broad interpretation of this single sentence is appropriate. To agree with such an interpretation

would place Brown in conflict with the Supreme Court’s decision in Angelus Milling. 

As has been discussed throughout this opinion, Angelus Milling distinguished between “explicit statutory requirements” and “detailed administrative regulations.” 

325 U.S. at 296. To wholesale interpret all regulations associated with signature and verification as statutory would 

disregard this distinction and elevate all regulations on 

this subject matter to a statutory requirement. The statutory text here simply cannot support that treatment. 

Additionally, the issue in Brown was different from the 

issue before us. In Brown, there was no discussion of the 

regulation at issue here, merely a single citation to 

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14 VENSURE HR, INC. v. US

§ 301.6402-2(e). 22 F.4th at 1013. Further, the facts there 

were wholly different because “[t]he Browns admit[ted] 

that they neither signed their refund claims nor tendered 

powers of attorney to permit their tax preparer to sign the 

claims on their behalf.” Id. at 1012.6 And Brown stated

that it dealt “[t]here only with the facts presented to us, 

relating to a return that is both unsigned by the taxpayers 

and not accompanied by a power of attorney.” Id. at 1013. 

In Brown, “not accompanied” meant a total absence of a 

power of attorney.7 Id. at 1012–13. That is different from 

the circumstances here where Vensure filed multiple powers of attorney purporting to cover the penalty-refund

claims at issue through its two Forms 2848 filed in 2015. 

Thus, Brown’s instruction to “satisfy the statutory default 

rule or else comply strictly with the implementing regulations” was limited to the requirement to supply a valid 

power of attorney, not when, where, and how to file one. 

6 The government notes that there was a power of 

attorney filed in Brown. Appellee’s Br. 22. But that was 

not a valid power of attorney because it was signed by the 

person being granted the power of attorney, not the taxpayer—i.e., the person assigning the power of attorney was 

the person being granted the power of attorney. Brown v. 

United States, 151 Fed. Cl. 530, 532 (2020). Nowhere had 

the taxpayer authorized a legal representative to file the 

claims on the taxpayer’s behalf. Therefore, in Brown, the 

taxpayers conceded that they had no valid power of attorney.

7 The government disagrees that Brown’s use of “accompanied” was so narrow, at least in part because the 

opinion also includes suggestions of “append[ing]” or “attach[ing]” a power of attorney to the claims. See 22 F.4th 

at 1010, 1012. But these passing references are merely 

dicta. 

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VENSURE HR, INC. v. US 15

II 

Having determined that the “accompany” requirement 

is regulatory, two fact-based questions remain: (1) whether 

Vensure’s powers of attorney as filed are sufficient to authorize an agent to execute its penalty-refund claims and 

(2) whether the IRS waived the “accompany” requirement 

in this case. We remand these questions of fact to the Court 

of Federal Claims to determine in the first instance.

A 

The government raises a question as to whether the 

powers of attorney at issue indeed cover the proper scope 

of representation due to purported defects with the Forms 

2848. On remand, the government can raise these alleged 

defects with the Court of Federal Claims (subject to that 

court’s view of whether the arguments have been adequately preserved). To the extent that any alleged defects 

are directed only to the when, where, and how of filing a 

power of attorney, such defects likely would not demonstrate an unmet statutory requirement and, instead, would 

implicate only regulatory requirements or sub-regulatory 

instructions. But to the extent the defects are such that 

Vensure has failed outright to grant Mr. Sheldon authority 

to represent it before the IRS to execute the penalty-refund 

claims at issue, then no valid power of attorney exists and 

Vensure is, like the Browns, left in violation of the signature and verification requirements necessary to “duly filed” 

a claim under § 7422(a). See Brown, 22 F.4th at 1013. 

B 

Assuming a valid power of attorney was filed with the 

IRS to cover the scope of representation for the penalty-refund claims, then the Court of Federal Claims must determine whether the “accompany” requirement was in fact 

waived here. When the IRS “dispense[s] with the formal 

requirements of a claim by investigating its merits,” regulatory requirements may be waived. Angelus Milling, 325 

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16 VENSURE HR, INC. v. US

U.S. at 296; see also id. at 297 (“If the Commissioner 

chooses not to stand on his own formal or detailed requirements, it would be making an empty abstraction, and not 

a practical safeguard, of a regulation to allow the Commissioner to invoke technical objections after he has investigated the merits of a claim and taken action upon it.”).

Angelus Milling’s waiver doctrine applies when 

“(1) there is clear evidence that the Commissioner understood the claim that was made, even though there was a 

departure in form in the submission, (2) it is unmistakable 

that the Commissioner dispensed with the formal requirements and examined the claim, and (3) the Commissioner 

took action upon the claim.” Brown, 22 F.4th at 1013 (citing Angelus Milling, 325 U.S. at 297–98). This three-part 

test contains underlying factual questions, which we will 

not undertake for the first time on appellate review. We 

leave to the Court of Federal Claims to decide this issue (if 

necessary) on remand. 

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

vacate the Court of Federal Claims’ prior determination 

that Vensure’s claims were not “duly filed” under § 7422(a) 

and remand for further proceedings consistent with this 

opinion. 

VACATED AND REMANDED 

COSTS

No costs.

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