1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0249p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

FORD MOTOR COMPANY, 

Plaintiff-Appellant, 

v. 

UNITED STATES OF AMERICA, 

Defendant-Appellee. 

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No. 10-1934 

Appeal from the United States District Court 

for the Eastern District of Michigan at Detroit. 

No. 2:08-cv-12960—Patrick J. Duggan, District Judge. 

Argued: July 29, 2014 

Decided and Filed: October 1, 2014 

BEFORE: BATCHELDER, GIBBONS, and ROGERS, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Gregory G. Garre, LATHAM & WATKINS LLP, Washington, D.C., for Appellant. 

Arthur T. Catterall, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Appellee. ON BRIEF: Gregory G. Garre, Katherine I. Twomey, LATHAM & WATKINS 

LLP, Washington, D.C., Richard E. Zuckerman, HONIGMAN MILLER SCHWARTZ AND 

COHN LLP, Detroit, Michigan, for Appellant. Arthur T. Catterall, Gilbert S. Rothenberg, 

Richard Farber, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Appellee. 

 GIBBONS, J., delivered the opinion of the court, in which BATCHELDER, J., joined, 

and ROGERS, J., joined except for Part III.A. ROGERS, J. (pg. 20), delivered a separate 

concurring opinion. 

 

>
No. 10-1934 Ford Motor Co. v. United States Page 2 

_________________ 

OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Ford Motor Company remitted hundreds of 

millions of dollars to the United States Treasury after the Internal Revenue Service (IRS) notified 

Ford that it had underpaid its taxes in prior years. Ford designated the funds as “deposits in the 

nature of a cash bond” but later asked the government to convert its remittances into “advance 

tax payments,” which are treated differently under the IRS’s revenue procedures. When the 

government subsequently reexamined its computations and determined that Ford had overpaid

its taxes in the relevant timeframe, the United States refunded Ford’s payments with interest. 

But the government refused to pay Ford any interest for the period during which the United 

States held Ford’s money as deposits—before the remittances were converted to advance tax 

payments. Ford demands about $450 million in additional interest from the government. The 

district court rejected Ford’s claim, and so do we. 

I.

Corporate tax returns, like individual tax returns, are subject to audit by the IRS. See 

generally 34 Am. Jur. 2d Federal Taxation ¶ 70000 et seq. When the taxpayer is a large 

corporation such as Ford, however, it often takes years for the IRS to conduct an audit and to 

assess the corporation’s tax liability for any particular year. That delay can be costly. In the 

event the IRS ultimately determines that the taxpayer underpaid its taxes, federal revenue laws 

make the taxpayer liable for underpayment interest that accrued while the IRS analyzed the 

taxpayer’s tax liability. 26 U.S.C. § 6601(a). But the risk runs both ways. If the IRS ultimately 

determines that the taxpayer overpaid its taxes for the year under scrutiny, the government is on 

the hook for overpayment interest, which accrues from “the date of the overpayment.” 26 U.S.C. 

§ 6611(b)(2). 

Ford remitted approximately $875 million to the United States in the 1990s after the IRS 

initiated an audit and preliminarily determined that Ford had underpaid its taxes by nearly 

$2 billion during the preceding decade. Ford sent the money pursuant to Revenue Procedure 84-
No. 10-1934 Ford Motor Co. v. United States Page 3 

58, which allows taxpayers to remit funds to stop the accrual of underpayment interest. See Rev. 

Proc. 84-58, 1984-2 C.B. 501, superseded by Rev. Proc. 2005-18, 2005-1 C.B. 798. The revenue 

procedure identifies two distinct types of tax remittances: “deposits in the nature of a cash bond” 

and “advance tax payments.” Ford designated each of its payments as a deposit in the nature of a 

cash bond, which the IRS says is “made merely to stop the running of [underpayment] interest,” 

“is not a payment of tax,” and “if returned to the taxpayer, does not bear interest.” Id. § 2.03. 

Only later did Ford ask the IRS to treat its remittances as advance tax payments, which do bear 

interest in the event of an overpayment. Id. § 5.05. The IRS complied and converted Ford’s 

deposits into advance tax payments, applying the payments against Ford’s outstanding tax 

deficiency from prior years. 

The dispute in this case arose when the IRS subsequently reversed its position and 

concluded that the monies Ford remitted to the IRS to cover the alleged deficiencies were 

actually an overpayment of taxes due for the years in question. The United States refunded 

Ford’s tax remittances plus overpayment interest, as required under 26 U.S.C. § 6611. 

Importantly, and at the heart of this dispute, the IRS calculated the amount of overpayment 

interest from the dates on which Ford requested that its deposits be converted into advance tax 

payments rather than from the earlier dates on which Ford remitted the deposits. Ford believes 

the interest started to accrue on the deposit dates. 

In July 2008 Ford filed a complaint in federal district court seeking $445 million in 

unpaid interest. Two years later the district court granted the government’s motion for judgment 

on the pleadings. The district court believed that it had to defer to the IRS’s interpretation of the 

Internal Revenue Code as long as that interpretation was reasonable. In Revenue Procedure 84-

58 the IRS interpreted § 6611 to require the government to pay interest only on overpayments 

designated as advance tax payments; in its view, taxpayers are not entitled to overpayment 

interest on remittances held as cash-bond deposits because there can be no overpayment of tax, 

and therefore no overpayment interest, until a taxpayer converts its cash-bond deposit into an 

advance tax payment. The district court deemed that interpretation to be reasonable and 

therefore upheld the IRS’s calculation of Ford’s overpayment interest. Ford Motor Co. v. United 

States, No. 08-12960, 2010 WL 2231894, at *7 (E.D. Mich. June 3, 2010). 
No. 10-1934 Ford Motor Co. v. United States Page 4 

 Ford appealed the district court’s decision to this court, and although the government 

abandoned its quest for regulatory deference, we affirmed. Ford Motor Co. v. United States, 

508 F. App’x 506 (6th Cir. 2012), vacated, 134 S. Ct. 510 (2013). We held that the canon of 

strict construction applicable to waivers of sovereign immunity required us to interpret § 6611 

narrowly. We therefore rejected Ford’s attempt to interpret the term “overpayment” in § 6611 to 

encompass both deposits and advance tax payments, as the IRS defines those terms. 

 Ford filed a petition for rehearing en banc, arguing for the first time that § 6611 was not a 

waiver of sovereign immunity. Instead, Ford argued that the applicable immunity waiver came 

from 28 U.S.C. § 1346(a)(1)—the statute that vested the district court with jurisdiction to 

adjudicate Ford’s case. Ford had not raised that argument in its briefs, and both this panel and 

the en banc court declined to rehear the appeal. 

 Ford then petitioned the Supreme Court for a writ of certiorari. In its opposition to that 

petition the United States argued that the district court (and therefore this court) lacked 

jurisdiction to hear this case. The government argued that § 1346(a)(1) does not apply to this 

claim and that “the only general waiver of sovereign immunity that encompasses [Ford’s] claim 

is the Tucker Act, 28 U.S.C. § 1491(a), which requires that suit be brought in the United States 

Court of Federal Claims.” In a footnote, the government acknowledged that it had not made this 

jurisdictional argument in the proceedings before this court because the jurisdictional question is 

foreclosed by E.W. Scripps Co. v. United States, 420 F.3d 589 (6th Cir. 2005). 

 The Supreme Court granted Ford’s petition for a writ of certiorari, vacated the panel’s 

decision, and remanded the case to this court. The Court stated: 

The Sixth Circuit should have the first opportunity to consider the Government’s 

new contention with respect to jurisdiction in this case. Depending on that court’s 

answer, it may also consider what impact, if any, the jurisdictional determination 

has on the merits issues, especially whether or not § 6611 is a waiver of sovereign 

immunity that should be construed strictly. 

Ford Motor Co. v. United States, 134 S. Ct. 510, 511 (2013). Ford’s appeal is once again ripe 

for our review. 
No. 10-1934 Ford Motor Co. v. United States Page 5 

II.

At the outset we must consider the question of jurisdiction—one of the two bases on 

which the Supreme Court remanded the case to this court. Ford invoked the district court’s 

jurisdiction under 28 U.S.C. § 1346(a)(1), which vests the district courts with jurisdiction to hear 

claims “for the recovery of any . . . sum alleged to have been excessive or in any manner 

wrongfully collected under the internal-revenue laws.” In its opposition to Ford’s certiorari

petition the government argued that § 1346(a)(1) does not confer jurisdiction over this claim 

because Ford does not seek to recover money already paid; rather, it demands interest that the 

IRS steadfastly refuses to pay. The government maintains that “the only general waiver of 

sovereign immunity that encompasses [Ford’s] claim is the Tucker Act, 28 U.S.C. § 1491(a), 

which requires that suit be brought in the United States Court of Federal Claims.” 

Although the Supreme Court remanded Ford’s appeal to this court “to consider the 

government’s new contention with respect to jurisdiction in this case,” both the United States 

and Ford acknowledge that the government’s jurisdictional challenge is foreclosed by E.W. 

Scripps Co. v. United States, 420 F.3d 589 (6th Cir. 2005). In Scripps this court held that 

§ 1346(a)(1) confers jurisdiction on the federal district courts to adjudicate claims for 

overpayment interest because the term “recovery of any sum” in that statute includes suits to 

obtain overpayment interest. 420 F.3d at 597 (citing Flora v. United States, 362 U.S. 145, 149 

(1960)). We concluded that our interpretation of § 1346(a)(1) was consistent with Library of 

Congress v. Shaw, 478 U.S. 310, 314 (1986), where the Court held that the United States is 

immune from any suit to obtain interest in the absence of express congressional consent to an 

award of interest. We noted that 26 U.S.C. § 6611, which specifically permits taxpayers to sue 

the government for overpayment interest, constitutes an express congressional waiver of the 

government’s immunity from suits to recover interest. Scripps, 420 F.3d at 597. 

The government encourages this panel sua sponte to poll the en banc court to gauge its 

interest in revisiting the issue decided in Scripps. See 6th. Cir. I.O.P. 35(e) (“[A]ny member of 

the en banc court may sua sponte request a poll for hearing or rehearing en banc before a party 

files an en banc petition.”). We decline the government’s invitation and therefore are bound by 

Scripps, which undeniably affirms the district court’s jurisdiction to decide this case. 
No. 10-1934 Ford Motor Co. v. United States Page 6 

III.

 We proceed to the merits. Ford insists that its remittances began to accrue overpayment 

interest on the date Ford sent them to the government, even though Ford initially designated its 

remittances as cash-bond deposits rather than advance tax payments. In Ford’s view the 

“conversion” of its deposits into advance tax payments had retroactive effect, and accordingly 

“the date of the overpayment” under 26 U.S.C. § 6611 was the date that Ford submitted each 

deposit to the United States. The government disagrees. It argues that there cannot be an 

overpayment until there is a payment, and both the ordinary meaning of the term “payment” and 

Revenue Procedure 84-58 make clear that a deposit in the nature of a cash bond is not a payment 

for purposes of § 6611. Both parties offer imaginative and convoluted theories to support their 

arguments, but the interpretive dispute that we must resolve is ultimately a simple one. 

A. 

 First we return to the canon of strict construction, as the Supreme Court specifically 

invited us to reconsider whether § 6611 is a waiver of sovereign immunity that must be strictly 

construed, and the parties ask us to confront that question at the outset. After concluding that 

both Ford and the United States offered “plausible” interpretations of the term “overpayment” in 

§ 6611, our initial opinion relied on the canon of strict construction to tip the scales in favor of 

the government. That canon provides that “a waiver of the Government’s sovereign immunity 

will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 

518 U.S. 187, 192 (1996). But our decision was predicated on the assumption, propounded by 

the United States and unchallenged by Ford, that § 6611 provided the applicable waiver of 

sovereign immunity. On remand from the Supreme Court we invited the parties to submit 

supplemental briefs in this appeal, and the parties have focused their arguments on this question. 

 A few courts have concluded (some in dicta) that § 6611 waives the government’s 

sovereign immunity with respect to suits for interest. See Exxon Mobil Corp. & Affiliated Cos. v. 

C.I.R., 689 F.3d 191, 202 (2d Cir. 2012); Int’l Bus. Mach. Corp. v. United States, 201 F.3d 1367, 

1371, 1374–75 (Fed. Cir. 2000); Schortmann v. United States, 82 Fed. Cl. 1, 6 (2008). But Ford 

argues that § 6611 creates a substantive right to interest rather than a waiver of the government’s 

sovereign immunity. Ford relies on cases such as United States v. Mitchell, 463 U.S. 206 (1983), 
No. 10-1934 Ford Motor Co. v. United States Page 7 

United States v. Navajo Nation, 537 U.S. 488 (2003), Gomez-Perez v. Potter, 553 U.S. 474 

(2008), and United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003), to differentiate 

between jurisdictional statutes that waive the government’s immunity and substantive provisions 

that establish a right to relief. Because § 6611 defines the scope of a taxpayer’s right to sue for 

interest but does not confer jurisdiction on the courts to adjudicate those claims, Ford argues, the 

canon of strict construction plays no role in defining the scope of the taxpayer’s right to interest 

under § 6611. 

 Ford is indeed correct to differentiate between jurisdictional waiver provisions and 

substantive statutes. In Mitchell, the Supreme Court noted that the Tucker Act waived the 

government’s immunity from “suit for claims founded upon statutes or regulations that create 

substantive rights to money damages” and that “the separate statutes and regulations” creating 

the substantive rights “need not provide a second waiver of sovereign immunity, nor need they 

be construed in the manner appropriate to waivers of sovereign immunity.” 463 U.S. at 218–19. 

The Court invoked this same principle in Navajo Nation to distinguish the Indian Tucker Act, 

which “confers jurisdiction upon the Court of Federal Claims,” from separate “rights-creating 

source[s] of substantive law” that entitle claimants to damages but do not constitute separate 

immunity waivers. 537 U.S. at 503. And in White Mountain Apache Tribe, another sovereignimmunity case decided the same day as Navajo Nation, the Court once again emphasized that the 

showing required to establish a right to relief under a substantive statute is “demonstrably lower 

than the standard for the initial waiver of sovereign immunity.” 537 U.S. at 472. 

 The government contends that interest is different, and indeed it is. Three years after 

Mitchell the Court decided Library of Congress v. Shaw, 478 U.S. 310, 314 (1986), which held 

that a suit for interest cannot be sustained against the United States unless there exists an 

“express congressional consent to the award of interest separate from a general waiver of 

immunity to suit.” The Court referred to the requisite substantive interest provision as a 

“separate waiver” of sovereign immunity, id., and noted that the United States retains its 

“immunity from awards of interest” unless Congress specifically authorizes an award of interest 

in that separate immunity waiver, id. at 317. Shaw thus appears to require two waivers of 

sovereign immunity in the context of a suit against the government to obtain interest—one 
No. 10-1934 Ford Motor Co. v. United States Page 8 

jurisdictional waiver establishing the right to bring suit in an appropriate court, and a second 

substantive waiver expressly authorizing an award of interest. 

 Because sovereign-immunity waivers must be strictly construed, the government 

contends, any doubts about whether Ford’s deposits constituted “overpayments” under § 6611 

must be resolved in favor of the United States. Properly interpreted, however, Shaw does not 

stand for the proposition that any ambiguity in the scope of a statutory interest provision must be 

resolved in the government’s favor. It stands instead for the proposition that a litigant may not 

sue the United States to recover interest unless Congress has expressly authorized suits for 

interest. See Missouri v. Jenkins, 491 U.S. 274, 280 (1989) (“Shaw involved an application of 

the longstanding ‘no-interest rule,’ under which interest cannot be awarded against the United 

States unless it has expressly waived its sovereign immunity.”). “[O]nce Congress has waived 

sovereign immunity over certain subject matter, the [courts] should be careful not to ‘assume the 

authority to narrow the waiver that Congress intended.’” Ardestani v. INS, 502 U.S. 129, 137 

(1991) (quoting United States v. Kubrick, 444 U.S. 111, 118 (1979)). 

Shaw did not interpret the scope of an interest provision; rather, it asked whether 

42 U.S.C. § 2000e-5(k), which allows the courts to award attorney’s fees against the government 

in civil-rights cases, could fairly be interpreted to authorize an award of interest on those 

attorney’s fees. Shaw, 478 U.S. at 319. To be sure, Shaw reiterated the common refrain that the 

canon of strict construction applies to all waivers of sovereign immunity, adding that the “nointerest rule provides an added gloss of strictness upon” the strict-construction canon. Id. at 

318–19. But once one gets past that rote statement of general immunity law, the actual analysis 

in Shaw reveals that the Court intended those statements to prevent courts from interpreting 

generally applicable statutes too broadly to permit awards of interest against the government 

when the statute does not expressly contemplate an award of interest. See id. at 318 (“When 

Congress has intended to waive the United States’ immunity with respect to interest, it has done 

so expressly.”). The Court went on to list several statutes that expressly authorize awards of 

interest against the government, using these statutes as examples of situations where Congress 

has waived the government’s sovereign immunity. 
No. 10-1934 Ford Motor Co. v. United States Page 9 

 Our interpretation of Shaw is consistent with the general purpose of sovereign immunity, 

which is to shield the government from suit—not from liability. See United States v. Sherwood, 

312 U.S. 584, 586 (1941). Sovereign immunity is a jurisdictional doctrine. Id. It bars the courts 

from adjudicating certain types of claims made against the sovereign; it does not require the 

courts to resolve all ambiguities in substantive statutory provisions in the government’s favor. 

The government’s view of Shaw would require the courts to draw every possible inference 

against a litigant seeking interest. That is plainly not what Shaw had in mind, and it would 

drastically distort sovereign-immunity jurisprudence to use the narrowing lens of the canon of 

strict construction to constrict the meaning of the statutory terms that define a substantive right to 

relief. Cf. United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 383 (1949) (“‘The exemption of 

the sovereign from suit involves hardship enough, where consent has been withheld. We are not 

to add to its rigor by refinement of construction, where consent has been announced.’” (quoting 

Anderson v. John L. Hayes Constr. Co., 153 N.E. 28, 29–30 (N.Y. 1926) (Cardozo, J.))). 

 There is accordingly no basis in the Supreme Court’s sovereign-immunity jurisprudence 

for applying the canon of strict construction to interpret the word “overpayment” in § 6611 to bar 

taxpayers from demanding interest on remittances that are designated as deposits in the nature of 

a cash bond. Nothing about the term “overpayment” suggests that Congress intended to waive 

the government’s sovereign immunity only with respect to remittances designated as advance tax 

payments. Indeed, the terms “deposit in the nature of a cash bond” and “advance tax payment” 

did not appear in the Internal Revenue Code when Ford made these remittances. The distinction 

between those types of remittances was invented by the IRS, not Congress, and the concept of a 

“deposit in the nature of a cash bond” did not arise until after Congress enacted § 6611. The 

distinction between deposits and advance tax payments therefore does not implicate the 

government’s sovereign immunity; it relates only to the scope of the substantive right. 

B.

 We employ the usual tools of statutory interpretation to determine whether “the date of 

the overpayment” under § 6611 was the date Ford remitted its deposits, as Ford contends, or the 

date the IRS converted its deposits into advance tax payments, as the government contends. This 

court begins any statutory-interpretation analysis “by examining the language of the statute itself 
No. 10-1934 Ford Motor Co. v. United States Page 10 

to determine if its meaning is plain.” Nat’l Air Traffic Controllers Ass’n v. Dep’t of Transp., 

654 F.3d 654, 657 (6th Cir. 2011) (internal quotation marks omitted). “Plain meaning is 

examined by looking at the language and design of the statute as a whole.” Id. (internal 

quotation marks omitted). We “must interpret statutes as a whole, giving effect to each word and 

making every effort not to interpret a provision in a manner that renders other provisions of the 

same statute inconsistent, meaningless or superfluous.” Menuskin v. Williams, 145 F.3d 755, 

768 (6th Cir. 1998) (internal quotation marks omitted). 

1.

We look first at the plain language of the statute. Section 6611(b)(1) says that the United 

States must pay overpayment interest from “the date of the overpayment.” An overpayment is 

“any payment in excess of that which is properly due,” Jones v. Liberty Glass Co., 332 U.S. 524, 

531 (1947), and dictionaries define the word “payment” as “the act of paying or giving 

compensation: the discharge of a debt or an obligation.” Webster’s Third New International 

Dictionary 1659 (1981). That definition focuses on the purpose with which a person or entity 

sends the funds: A remittance is a payment when it is given to discharge a debt or obligation.1

 

Whether Ford’s cash-bond deposits were payments under § 6611 thus turns on whether they 

were made for the purpose of discharging its estimated tax obligations. 

That Ford remitted its deposits before the IRS had finally determined its tax liability is of 

no moment. The revenue laws are clear (though perhaps verbose) on this point: “An amount 

paid as tax shall not be considered not to constitute an overpayment solely by reason of the fact 

that there was no tax liability in respect of which such amount was paid.” 26 U.S.C. § 6401(c). 

 1

Black’s Law Dictionary uses a slightly different definition that focuses on the intent of the putative payee 

rather than the payor. See Black’s Law Dictionary (9th ed. 2009) (defining payment as “[p]erformance of an 

obligation by the delivery of money . . . accepted in partial or full discharge of the obligation” (emphasis added)). 

In the context of interpreting § 6611, however, it would be inappropriate to permit the IRS, as the putative payee, to 

determine whether a specific remittance constitutes a payment. If, for example, a taxpayer remits funds to the IRS 

and designates the remittance as an advance tax payment to be allocated to a specific tax deficiency, and the IRS 

negligently fails to record the remittance as a payment and instead places the funds into some reserve account, the 

IRS’s error should not affect whether the remittance is deemed to be a payment within the meaning of § 6611. 
No. 10-1934 Ford Motor Co. v. United States Page 11 

Thus a corporation such as Ford may “pay” its tax obligations upon receipt of a preliminary 

notice of tax deficiency, even before the obligations are finalized or otherwise become due.2

According to IRS revenue procedures in effect at the time, both cash-bond deposits and 

advance tax payments stopped the government from charging interest on an estimated tax 

underpayment while the IRS finalized its tax assessment (as long as the deposit was eventually 

posted against the assessment.) But the revenue procedures treated deposits and advance tax 

payments differently in one important respect: A taxpayer could demand the immediate return of 

a deposit anytime, while an advance tax payment would be returned only through the IRS’s 

formal refund process, which take’s time. See Rev. Proc. 84-85 § 4.02.1. So when Ford sent its 

remittances, it faced a tradeoff: If a taxpayer remitted a cash-bond deposit but subsequently 

demanded the deposit’s return, the IRS would not pay the taxpayer any interest for the period 

during which the government held the funds.3

 When a taxpayer demanded a refund of an 

excessive advance tax payment, by contrast, the IRS allowed the taxpayer to recoup interest. 

Thus the revenue procedures forced taxpayers to choose: immediate access without interest, or 

interest without immediate access. 

Considered in this context, Ford’s purpose comes more sharply into focus, see Dolan v. 

U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon 

reading the whole statutory text, considering the purpose and context of the statute, and 

consulting any precedents or authorities that inform the analysis.”), and belies any claim that 

Ford’s purpose in remitting the cash-bond deposits was to discharge its estimated tax obligations. 

Ford could have designated its remittances as advance tax payments and instructed the IRS to 

apply its remittances against any tax liability ultimately assessed. Both parties agree that would 

have been a “payment” because such a remittance would have been made for the purpose of 

 2

This statute is one reason we do not rely on Rosenman v. United States, 323 U.S. 658 (1945), to guide our 

interpretation of § 6611. In Rosenman, the Court stated that a deposit in the nature of a cash bond was not a 

payment, noting that the United States regularly refused to pay overpayment interest on such deposits when the 

deposit turned out to be in excess of the tax liability eventually assessed. Id. at 662–63. But Rosenman held that the 

remittances in question could not be payments in part because the government had not yet assessed any tax. See id. 

at 662. That reasoning is inconsistent with § 6401(c), enacted in response to Rosenman, which explicitly rejects the 

notion that interest cannot accrue until a tax is actually assessed. 

3

This revenue procedure has been abrogated in part by 26 U.S.C. § 6603. 
No. 10-1934 Ford Motor Co. v. United States Page 12 

satisfying the estimated tax deficiency. Yet Ford chose instead to designate its remittances as 

deposits. Ford is a sophisticated taxpayer, and its designation of the remittances was not 

accidental. A taxpayer’s deliberate decision to designate its remittance as a deposit rather than 

an advance tax payment directly evidences an intent not to make a “payment.” That purpose is 

determinative 

Ford invokes the use-of-money principle, a general federal policy favoring compensation 

for the use of taxpayer money, see Marsh & McLennan Cos. v. United States, 302 F.3d 1369, 

1380 & n.10 (Fed. Cir. 2002), and argues that the principle requires this court to interpret § 6611 

to entitle Ford to interest on its deposits. As this court explained in Scripps: 

Congress, in enacting 26 U.S.C. § 6611 . . . , has made clear that it believes that 

taxpayers should be compensated for the lost time-value of their money when 

they make overpayments of tax. The payment of statutory interest reflects an 

attempt to return the taxpayer and the Government to the same positions they 

would have been in if no overpayment had been made. If the Government does 

not compensate the taxpayer for the time-value of the tax overpayment, the 

Government has retained more money than it is due, i.e., an “excessive sum.” 

Scripps, 420 F.3d at 597; see also Int’l Bus. Mach. Corp., 201 F.3d at 1374–75 (“Congress has 

waived sovereign immunity in both the tax code and the customs laws to permit interest to be 

paid on certain refunds to allow for the time value of money when the Government has had the 

use for a period of time of money to which it is not lawfully entitled. Congress has considered 

this to be only fair and proper.”). 

Yet the use-of-money principle is not absolute. It “is merely a principle of statutory 

construction” that “cannot be used to trump the specific statutory scheme Congress has devised.” 

FleetBoston Fin. Corp. v. United States, 483 F.3d 1345, 1353 (Fed. Cir. 2007). Nor does the 

use-of-money principle trump the IRS’s longstanding payment scheme. By enacting § 6611, 

Congress gave life to the use-of-money principle by allowing taxpayers to earn overpayment 

interest on remittances paid to the United States before a final tax deficiency is assessed. But 

Ford opted not to use that procedure and instead remitted deposits in the nature of a cash bond. 

Ford cannot now invoke the use-of-money principle to argue that the government is improperly 

refusing to compensate Ford for the time-value of its money. The United States offered to 

compensate Ford for the time-value of its money on the condition that Ford submit to the IRS’s 
No. 10-1934 Ford Motor Co. v. United States Page 13 

refund procedures, but Ford elected not to accept the government’s offer. Cf. Marsh & 

McLennan Cos., 302 F.3d at 1381 (“The taxpayer could have sought a refund for the excess 

funds, or left the excess funds as an interest-bearing overpayment. A taxpayer that makes a 

credit elect has no one to blame but itself for the non-payment of interest on that amount.”). 

We conclude that Ford’s cash-bond deposits were not payments, and therefore were not 

overpayments, because Ford did not remit those deposits to discharge its estimated tax 

deficiency. Rather, Ford’s decision to designate its remittances as deposits rather than advance 

tax payments demonstrates that the sole purpose of the remittances was to stop the accrual of 

underpayment interest. The IRS properly refused to award Ford any interest for the period 

during which the United States held Ford’s remittances as cash-bond deposits. 

2.

Ford suggests that this interpretation is inconsistent with the design of the broader 

underpayment- and overpayment-interest scheme. To infuse consistency into Congress’s 

scheme, Ford suggests that the “most appropriate starting point” is not the text of § 6611 but 

instead the language of § 6601, the provision governing underpayment interest. Ford contends 

that these two sections should be interpreted symmetrically because they each use similar 

language, compare § 6601 (“date paid”), with § 6611 (“date of the overpayment”), and each 

relates to the accrual of interest on tax payments. Its basic argument is this: Underpayment 

interest accrues under § 6601(a) from the date the tax is due until the date the tax is paid. The 

statute thus requires the IRS to charge taxpayers underpayment interest until the tax deficiency is 

“paid.” And for underpayment purposes, unlike in the overpayment context, the IRS treats cashbond deposits as tax payments; according to section 5.01 of Revenue Procedure 84-58, 

underpayment interest stops accruing on the date a remittance is received from a taxpayer, 

irrespective whether the taxpayer designates its remittance as an advance tax payment or a 

deposit in the nature of a cash bond. To maintain symmetry between these two parallel statutes, 

Ford argues, a deposit that qualifies as a payment under § 6601 must similarly qualify as a 

payment under § 6611. In other words, if a deposit stops the accrual of underpayment interest, a 

deposit also must start the accrual of overpayment interest. 
No. 10-1934 Ford Motor Co. v. United States Page 14 

Although Ford’s plea for regulatory consistency is facially appealing, examining it 

beneath the surface reveals its flaws. First, Ford does not explain why our interpretation of 

§ 6611 should turn on the IRS’s interpretation of § 6601. A common canon of construction 

compels courts to interpret statutory terms consistently, see Sorenson v. U.S. Sec’y of Treasury, 

475 U.S. 851, 860 (1986), but Ford seems to believe that a corollary to that canon requires courts 

to defer to agencies’ interpretations of parallel statutory terms. Yet neither Ford nor the 

government suggests that the IRS is entitled to formal interpretive deference in this case, and 

neither rule nor canon counsels this court to interpret one statutory provision consistently with an 

agency’s informal interpretation of another. To the extent the IRS’s interpretation of §§ 6601 

and 6611 needs to be harmonized with this court’s interpretation of those statutes, the duty of 

harmonization falls on the IRS, not this court. 

Second, Ford’s resolution of the IRS’s inconsistent enforcement of §§ 6611 and 6601 is 

unconvincing. Ford may be right to criticize the IRS for treating a deposit as a payment under 

§ 6601 while refusing to treat it as a payment under § 6611, but that tells us nothing about which 

of the two treatments is correct. Although Ford argues that the IRS’s inconsistency means that a 

deposit should be treated as a payment under § 6611, perhaps the converse is true—i.e., a deposit 

should not be treated as a payment under § 6601, and interest should stop accruing on 

underpayments only upon receipt of a remittance designated as an advance tax payment. Despite 

the persuasiveness of Ford’s plea for symmetrical interpretations, it does little to help us 

understand the proper meaning of the term “overpayment” in § 6611. 

Third, no matter how we decide this case, taxpayers will have reason to complain about 

inconsistencies in the IRS’s practices. If the word “payment” includes cash-bond deposits, the 

IRS has been improperly withholding overpayment interest from taxpayers who designate their 

remittances as deposits rather than advance tax payments. And if the word “payment” does not

include deposits, the IRS has been letting taxpayers off the hook by stopping the accrual of 

underpayment interest as of the date that taxpayers remit a cash-bond deposit. Thus there is 

nothing we can do to rectify the IRS’s inconsistent treatment of cash-bond deposits in this case, 

and the IRS’s practices do not transform our duty to interpret § 6611. 
No. 10-1934 Ford Motor Co. v. United States Page 15 

3.

 Ford also encourages us to interpret § 6611 through the lens of Revenue Procedure 84-

58—or, more specifically, one isolated provision of that revenue procedure. As an initial matter, 

even if that provision were on point, it is not clear that an interpretation of the term 

“overpayment” dictated by the IRS’s revenue procedures would control our interpretation of that 

statutory term. The government for good reason does not argue that the revenue procedure is 

entitled to deference. Revenue procedures are at most interpretive aids, see Estate of Shapiro v. 

C.I.R., 111 F.3d 1010, 1017 (2d Cir. 1997) (citing Estate of Jones v. C.I.R., 795 F.2d 566, 571 

(6th Cir. 1986)), that do not enjoy the status of law or regulation, do not bind the courts, Xerox 

Corp. v. United States, 41 F.3d 647, 657–58 (Fed. Cir. 1994), and typically do not even bind the 

IRS itself, see Shapiro, 111 F.3d at 1017–18; Riley v. United States, 118 F.3d 1220, 1222 (8th 

Cir. 1997). Yet we need not decide whether the IRS’s revenue procedures should influence our 

interpretation of § 6611 because we reject Ford’s reading of Revenue Procedure 84-58. 

 Ford focuses on section 5.05 of Revenue Procedure 84-58, which reads: 

Remittances treated as payments of tax will be treated as any other assessed 

amount and compound interest will be paid on any overpayment under section 

6611 of the Code. In the event that [a] deposit in the nature of a cash bond is 

posted to a taxpayer’s account as a payment of tax pursuant to subparagraph 3 of 

section 4.02, interest will run on an overpayment later determined to be due only 

from the date the amount was posted as a payment of tax. 

 In Ford’s view the first sentence of section 5.05 establishes the general rule that 

overpayment interest will be paid on all “[r]emittances treated as payments of tax,” regardless 

whether the IRS treats the remittance as an advance tax payment upon receipt or instead later 

“converts” a cash-bond deposit into an advance tax payment. Ford maintains that the second 

sentence—which is applicable only when a deposit is converted to an advance tax payment 

under section 4.02 and which says that in those circumstances interest begins to accrue on the 

“conversion date” rather than the “deposit date”—is the lone exception to the general rule 

established in the first sentence. As Ford tells it, “[b]ecause there would be no need for such an 

‘exception’ if interest can never begin accruing under § 6611 before the conversion date, it 

follows that the general rule must be that interest does accrue from the remittance date on a 

converted deposit.” And because both parties agree that section 4.02 is inapplicable here, Ford 
No. 10-1934 Ford Motor Co. v. United States Page 16 

argues that the general rule in section 5.05 requires the IRS to treat its converted deposits as 

advance tax payments from the date of deposit rather than the conversion date. 

 The government notes in response that the entire concept of “conversion” is foreign to 

Revenue Procedure 84-58, which nowhere permits the IRS to convert a deposit in the nature of a 

cash bond into an advance tax payment. Although the government acknowledges that the IRS 

permits conversions, it suggests that a conversion is actually a “constructive return” of a 

taxpayer’s deposit followed by the taxpayer’s immediate re-submission of the deposit as an 

advance tax payment. Because sections 2.03 and 4.02 of Revenue Procedure 84-58 state that a 

taxpayer is not entitled to interest on a returned deposit, the government argues, a taxpayer who 

requests a conversion is not entitled to any pre-conversion interest because the government 

constructively returned the deposit to the taxpayer. 

The government’s interpretation is illogical. Section 5.01 of Revenue Procedure 84-58 

says that if a taxpayer requests a deposit’s return, the taxpayer does not “receive credit” for 

underpayment-interest purposes for the period that the deposit was held by the government. So 

if the United States actually “constructively returned” taxpayers’ deposits whenever taxpayers 

requested the conversion of their deposits into advance tax payments, the constructive return of 

the deposit would mean the taxpayer would owe interest to the United States for the preconversion period that the government held the money as a deposit. But the parties agree that in 

practice the IRS does not charge interest for tax underpayments when it holds a sufficient 

deposit—even when the deposit is subsequently converted to an advance tax payment. The IRS 

therefore cannot be said to effect a “constructive return” of a taxpayer’s deposit merely by 

converting it to an advance tax payment.4

Yet Ford’s interpretation also cannot be correct. The second sentence of section 5.05 is 

irrelevant to this case: It applies when a payment is converted under section 4.02, and everyone 

agrees that is not what occurred here. The question is whether the first sentence of section 5.05 

 4

Furthermore, it appears that the IRS, in a private-letter ruling, has contradicted the interpretation of 

Revenue Procedure 84-58 it now advances. See I.R.S. P.L.R. 8738041 (June 23, 1987). Specifically, the IRS stated 

that “[b]ecause the Government will have uninterrupted use of [a] remittance, the remittance will not be deemed to 

be returned upon redesignation as a payment of tax . . . .” Id. This statement appears to cut against the government’s 

contention that converted deposits are constructively returned to the taxpayer. 
No. 10-1934 Ford Motor Co. v. United States Page 17 

should be interpreted to require the government to apply the conversion retroactively, such that a 

deposit that is later converted to an advance tax payment will be treated as if it were an advance 

tax payment the entire time the government held the money. Ford is correct that its 

interpretation gives meaning to the second sentence of section 5.05, which would otherwise be 

meaningless. But that is an insufficient basis on which to give legal effect to Ford’s creative but 

unsubstantiated theory of retroactive conversion. We will not read the theory of retroactive 

conversion into section 5.05 merely to rescue one sentence from surplusage when that reading 

would frustrate or violate other provisions of Revenue Procedure 84-58, including the numerous 

provisions stating that taxpayers are not entitled to overpayment interest on remittances 

designated as deposits. See Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004) (stating that the 

“preference for avoiding surplusage constructions is not absolute” and should be abandoned 

where it would lead to an interpretation that is inconsistent with the plain text of the statute). 

Nor would Ford’s interpretation be consistent with the general policy and structure of 

Revenue Procedure 84-58, which presumptively treats all remittances as advance tax payments 

unless the taxpayer specifically requests that its remittance be treated as a deposit. See Rev. 

Proc. 84-58 § 4.01. As noted above, taxpayers face a trade-off when they send remittances: 

Submit the remittance as a deposit and retain the right to demand its immediate return while 

sacrificing the right to earn interest in the event the remittance exceeds the taxpayer’s ultimate 

tax liability. Or, conversely, submit the remittance as an advance tax payment to ensure that the 

payment earns interest, with the risk that, if the IRS revises its proposed tax deficiency 

downward, the advance tax payment will only be returned through the IRS’s formal refund 

process rather than upon immediate demand by the taxpayer. Ford’s interpretation of section 

5.05 not only distorts the text, it also would permit taxpayers to obtain the benefits of cash-bond 

deposits, which constitute an IRS dispensation, without suffering the detriment that cash-bond 

deposits entail. That would lay waste to the numerous provisions of Revenue Procedure 84-58 

that bar taxpayers from collecting interest on remittances held as deposits. 

The better interpretation of section 5.05 is simply that it does not apply to the 

circumstances of this case. At bottom, the imaginative theories that both parties propound—

Ford’s argument for interpretive symmetry between §§ 6601 and 6611, the government’s theory 
No. 10-1934 Ford Motor Co. v. United States Page 18 

of constructive return, and Ford’s theory of retroactive conversion—are all attempts to tackle the 

simple fact that the IRS’s whimsical treatment of deposits and conversions might be ultra vires

because the revenue procedures do not contemplate conversions, and the IRS appears to treat 

deposits differently in the contexts of underpayment and overpayment interest. But this dispute 

is about the proper interpretation of § 6611; it is not about whether the IRS’s conversion of 

deposits into advance tax payments is ultra vires. If the IRS needs to update its revenue 

procedures to memorialize the practice of converting deposits into advance tax payments in order 

to eliminate disparities in the treatment of certain types of remittances, it should do so. We will 

not adopt a strained reading of § 6611 merely to make slightly better sense of contradictory 

provisions in Revenue Procedure 84-58. 

4.

Finally, Ford also claims to find support for its position in the enactment of section 842 

of the American Jobs Creation Act of 2004, Pub. L. No. 108-357, 118 Stat. 1418 (codified at 

26 U.S.C. § 6603), which provides that, contrary to previous practice, taxpayers who remit cashbond deposits to the IRS and subsequently request the return of those funds are entitled to 

interest in certain circumstances. Section 6603 provides for a lower interest rate for returned 

deposits as compared to the general overpayment interest rate applicable under § 6611. 

Compare § 6603(d)(4), and § 6621(b), with § 6611(a), and § 6621(a)(1). Ford contends that 

because § 6603 allows a taxpayer who requests the return of its deposit to recover interest from 

the remittance date, it makes little sense to interpret § 6611 to allow a taxpayer who converts a 

deposit—rather than asking for its return—to recover interest only from the conversion date. A 

taxpayer who requests the return of a deposit would then be entitled to interest from an earlier 

date than the taxpayer who requests the deposit’s conversion, thus illogically rewarding the 

taxpayer who seeks the return of its deposit over the taxpayer who actually converts its deposit 

into an advance payment of tax. 

The government responds with its constructive-return theory—that a converted deposit is 

actually two sequential transactions, a constructive return of the deposit followed by immediate 

re-submission of that deposit as a tax payment. Under that approach the taxpayer would be paid 

interest under § 6603 from the deposit date until the date of the constructive return and would 
No. 10-1934 Ford Motor Co. v. United States Page 19 

then be paid at the higher interest rate established in § 6621(a)(1) from the constructive-return 

date until the refund date. In other words, the government suggests that § 6603 allows for the 

payment of interest at two different rates for a converted deposit, while prior to the enactment of 

§ 6603 interest would only be paid from the date of conversion forward. 

Both Ford and the United States advance interpretations of § 6611 that would reconcile 

that statute and § 6603 with the IRS’s apparent practice of converting deposits into advance tax 

payments. Yet § 6603 had not been enacted when Ford remitted its deposits, so we need not 

concern ourselves with the effect of that statute on the facts of this case. Taxpayers who remit 

deposits today may conclude that they can maximize their interest by requesting the return of 

their deposits instead of converting those deposits into advance tax payments. That choice was 

not available to Ford, however, and we will not adopt a warped interpretation of § 6611 merely 

to allow Ford to recoup interest that Congress only recently decided to award. 

IV.

 The district court’s decision is affirmed. 

 
No. 10-1934 Ford Motor Co. v. United States Page 20 

_________________ 

CONCURRENCE

_________________ 

ROGERS, J., concurring. I join the majority’s opinion, except for Part III.A. For the 

compelling reasons given in the remainder of the majority’s opinion, the Government does not 

owe interest on the amounts paid by Ford as a deposit. There is no need at all to address the 

applicability of the strict construction canon for waivers of sovereign immunity, and I would 

therefore not do so. See Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. 

L. Rev. 1249 (2006). 

Unnecessarily addressing the issue is particularly problematic in this instance, where the 

issue is close and conceptually difficult. I would not say, for instance, that the general purpose 

of sovereign immunity is only to shield the government from suit, and not from liability. 

Immunity of the United States in its own courts is a doctrine that serves separation-of-powers 

interests, and is not just a matter of court jurisdiction. In our three-branch scheme of 

government, courts generally have the final power both to say what the law is and to compel 

compliance with the law. But the legislature has a particularly strong primary responsibility with 

respect to the allocation of public funds, because of its responsiveness to popular views and its 

ability to weigh interests. This primary responsibility of the legislature to allocate public funds is 

reflected in the doctrine of sovereign immunity, which as a modern doctrine is almost entirely 

limited to money suits. Courts cannot take public funds and give them to private parties unless it 

is particularly clear that Congress intended for the courts to do so. This limit logically applies 

not only to whether a particular court has jurisdiction, but also to whether the private parties are 

entitled to the money. Sovereign immunity thus comprises not only a jurisdictional limit, but a 

substantive one as well.