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

_________________

F ORD M OTOR C OMPANY , Plaintiff-Appellant ,

v

.

U

NITED S TATES OF A MERICA , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 10-1934

Appeal from the United St ates 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 JUST ICE, Washington, D.C., for Appellee. ON BRIEF: Gregory G. Garre, Katherine I. Twomey, LATHAM & WATKINS LLP, Washington, D.C., Richard E. Zuck erman, HONIGMAN MI LLER SCHWARTZ AND COHN LLP, Detroit, Michigan, for Appellant. Arthur T. Catterall, Gilbert S. Rothenberg, Richard Farber, UNITED STA TES DEPARTMENT OF JUSTIC E, 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

_________________ 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 taxe s in prior years. Ford designate d the funds as “deposits in the
nature of a cash bond” but later asked the government to conve rt its remittances into “advance tax payments,” which are treated differently un der the IRS’s revenue pr ocedures. When the government subsequently reexamined its com putations and determined that Ford had overpaid its taxes in the relevant timeframe, the United St ates refunded Ford’s paym ents 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 th e 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 i ndividual tax returns, are subj ect 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 take s years for the IRS to conduct an audit and to assess the corporation’s tax liability for any partic ular 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 intere st 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 th e United States in the 1990s after the IRS initiated an audit and prelimin arily 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 re mit 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 di stinct types of tax remittances: “de posits 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 [unde rpayment] 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 re mittances 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 que stion. The United States refunded Ford’s tax remittances plus overpayment inte rest, 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 fe deral district court seeking $445 million in unpaid interest. Two years late r 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 interpre tation was reasonable. In Revenue Procedure 84- 58 the IRS interpreted § 6611 to require the gov ernment to pay interest only on overpayments designated as advance tax payments; in its vi ew, taxpayers are not entitled to overpayment interest on remittances held as cash-bond deposit s because there can be no overpayment of tax, and therefore no overpayment inte rest, until a taxpayer converts its cash-bond deposit into an advance tax payment. The district court deem ed 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 decisi on to this court, and although the government abandoned its quest for regulator y 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 sove reign 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 paym ents, 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 ar gued that the applicable immunity waiver came from 28 U.S.C. § 1346(a)(1)—the statute that vest ed the district court with jurisdiction to adjudicate Ford’s case. Ford had not raised th at 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 sove reign immunity that encompasses [Ford’s] claim is the Tucker Act, 28 U.S.C. § 1491(a), which requi res 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 pro ceedings before this court becaus e the jurisdictional question is foreclosed by E.W. Scripps Co. v. United States , 420 F.3d 589 (6th Cir. 2005).
The Supreme Court granted Fo rd’s petition fo r a writ of certiorari , vacated the panel’s decision, and remanded the case to th is court. The Court stated:

The Sixth Circuit should ha ve the first opportunity to consider the Government’s new contention with respect to jurisdiction in this case. Depe nding on that court’s answer, it may also consider what impact, if any, the jurisdic tional 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 questio n 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 withjurisdiction to hear claims “for the recovery of any . . . sum alle ged to have been exces sive or in any manner wrongfully collected under the internal-reven ue 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 C ourt of Federal Claims.”
Although the Supreme Court rema nded Ford’s appeal to this court “to consider the government’s new contention with respect to juri sdiction in this case,” both the United States and Ford acknowledge that the government’s jurisdictional challe nge is foreclosed by E.W. Scripps Co. v. United States , 420 F.3d 589 (6th Ci r. 2005). In Scripps this court held that § 1346(a)(1) confers jurisdiction on the federal di strict courts to ad judicate 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 interpre tation of § 1346(a)(1) was consistent with Library of Congress v. Shaw , 478 U.S. 310, 314 (1986), where the Cour t held that the United States is immune from any suit to obtain in terest in the absence of expre ss 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, constitu tes 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 fo r hearing or rehearing en banc before a party files an en banc petition.”). We decline th e government’s invitati on and therefore are bound by Scripps , which undeniably affirms the district co urt’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 gove rnment, 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. Th e government disagrees. It ar gues that there cannot be an overpayment until there is a payment, and both th e 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 imagin ative 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 ca non 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 “plausibl e” interpretations of the term “overpayment” in § 6611, our initial opinion relied on th e canon of strict construction to tip the scales in favor of the government. That canon provides that “a waiv er 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 wa s 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 Supr eme Court we invited th e parties to submit supplemental briefs in this appeal, and the partie s 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 substantiv e 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 juri sdiction on the courts to adjudicat e those claims, Ford argues, the canon of strict construction plays no role in defini ng the scope of the taxpay er’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 fo unded upon statutes or regul ations that create substantive rights to money damages” and that “t he 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 appropr iate 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 Fede ral Claims,” from sepa rate “rights-creating source[s] of substantive law” that entitle clai mants 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 un der a substantive statute is “demonstrably lower
than the standard for the in itial waiver of sovereign i mmunity.” 537 U.S. at 472.
The government contends that interest is di fferent, and indeed it is. Three years after
Mitchellthe Court decided Library of Congress v. Shaw , 478 U.S. 310, 314 (1986), which held that a suit for interest cannot be sustained ag ainst 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—oneNo. 10-1934 Ford Motor Co. v. United States Page 8

jurisdictionalwaiver establishing the right to bring suit in an appropriate court, and a second
substantive waiver expressly authorizi ng an award of interest.
Because sovereign-immunity waivers must be strictly construed, the government contends, any doubts about whether Ford’s depos its constituted “overpayments” under § 6611
must be resolved in favor of the Unite d States. Properly interpreted, however, Shaw does not stand for the proposition that any am biguity in the scope of a statutory interest provision must be resolved in the government’s favor . It stands instead for the pr oposition that a litigant may not
sue the United States to recover interest unl ess 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 awar ded against the United States unless it has expressly wa ived its sovereign immunity.”). “[O]nce Congress has waived sovereign immunity over certain subject matter, th e [courts] should be care ful 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 interpre ted to authorize an awar d 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 waiv ers of sovereign immun ity, adding that the “nointerest rule provides an a dded gloss of strictness upon” th e 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 statem ents to prevent courts from interpreting generally applicable statutes t oo broadly to permit awards of in terest 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 seve ral statutes that expressly authorize awards of interest against the gove rnment, 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 genera l 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 immun ity is a jurisdic tional 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 provisi ons in the government’s favor. The government’s view of Shaw would require the courts to draw every possible inference against a litigant seeking intere st. That is plainly not what Shaw had in mind, and it would drastically distort sovereign-imm unity jurisprudence to use the narrowing lens of the canon of
strict construction to constrict th e 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 ha s been withheld. We are not to add to its rigor by refinement of construc tion, 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 Suprem e Court’s sovereign-im munity jurisprudence for applying the canon of strict construction to interpret the word “overp ayment” in § 6611 to bar taxpayers from demanding interest on remittances th at 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 immun ity 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 re mitted 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-interp retation analysis “by examining th e language of the statute itselfNo. 10-1934 Ford Motor Co. v. United States Page 10

to determine if its meaning is plain.” Nat’l Air Traffic Controlle rs 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 statut es as a whole, giving effect to each word and making every effort not to interp ret a provision in a manner that renders other provisions of the same statute inconsistent, m eaningless 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 statut e. 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 th at which is properly due,” Jones v. Liberty Glass Co. , 332 U.S. 524, 531 (1947), and dictionaries define the word “p ayment” 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 paym ents under § 6611 thus turns on whether they were made for the purpose of discha rging 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 verbos e) on this point: “An amount paid as tax shall not be considered not to consti tute an overpayment solely by reason of the fact that there was no tax liability inrespect 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) (d efining 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 remitta nce as a payment and instead places the funds into some re serve 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 Fo rd may “pay” its tax obligations upon receipt of a preliminary notice of tax deficiency, even before the oblig ations are finalized or otherwise become due. 2

According to IRS revenue procedures in e ffect at the time, bot h cash-bond deposits and advance tax payments stopped the government fr om 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 revenu e 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 paym ent 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 taxpaye r remitted a cash-bond deposit but subsequently demanded the deposit’s return, the IRS would notpay 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 te xt, considering the purpose and context of the statute, and consulting any precedents or authorities that info rm the analysis.”), and belies any claim that Ford’s purpose in remitting the cash-bond deposits wa s to discharge its estim ated tax obligations. Ford could have designated its remittances as advance tax payments and instructed the IRS to apply its remittances against any tax liability ul timately 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 de signate 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 requi res this court to interpret § 6611
to entitle Ford to interest on its de posits. 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 paym ent 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 mere ly 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 longs tanding payment scheme. By enacting § 6611, Congress gave life to the use-of-money principle by allowi ng 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 instea d remitted deposits in the nature of a cash bond.
Ford cannot now invoke the use-o f-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 mone y on the condition that Ford submit to the IRS’sNo. 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 overpayme nt. 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 t hose 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 Fo rd’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 be cause 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 ch arge taxpayers underpayment intere st 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 da te 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 consiste ncy 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 th at 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 statutor y provision consistently with an agency’s informal interpretation of another. To the extent th e 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 th e IRS’s inconsistent enfor cement 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 unde r § 6611, but that tells us nothing about which
of the two treatments is correct. Although Ford argues that th e IRS’s inconsistency means that a deposit should be treated as a payment under § 6611, perh aps 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 desi gnated as an advance tax payment. Despite the persuasiveness of Ford’s plea for symmetri cal 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, taxp ayers will have reason to complain about inconsistencies in the IRS’s pr actices. 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 ta x 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 ta xpayers remit a cash-bond de posit. Thus there is nothing we can do to rectify the IRS’s inconsiste nt treatment of cash-bond deposits in this case, and the IRS’s practices do not tr ansform 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 th at revenue procedure. As an initial matter, even if that provision were on point, it is not clear that aninterpretation of the term “overpayment” dictated by the IRS’ s revenue procedures would cont rol our interpretation of that statutory term. The government for good reason does not argue th at the revenue procedure is entitled to deference. Revenue proce dures 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 stat us of law or regulati on, 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 th e 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 Re venue Procedure 84-58, which reads:
Remittances treated as payments of tax will be treated as any other assessed amount and compound interest will be pa id 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 paymen t of tax pursuant to subparagraph 3 of section 4.02, interest will run on an overp ayment 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 s ection 5.05 establishes the general rule that overpayment interest will be paid on all “[r]emitt ances 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 de posit 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 th e “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 § 6 611 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, FordNo. 10-1934 Ford Motor Co. v. United States Page 16

argues that the general rule in section 5.05 requi res the IRS to treat it s converted deposits as advance tax payments from the date of deposit rather than the conversion date.
The government notes in response that the en tire concept of “convers ion” is foreign to Revenue Procedure 84-58, which nowhere permits th e IRS to convert a deposit in the nature of a cash bond into an advance tax payment. Alt hough the government acknowledges that the IRS permits conversions, it suggests that a conversi on is actually a “cons tructive return” of a taxpayer’s deposit followed by the taxpayer’s im mediate 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 inte rest on a returned deposit, the government argues, a taxpayer who requests a conversion is not en titled to any pre-conversion in terest 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 retu rned” taxpayers’ deposits whenever taxpayers requested the conversion of their deposits into advance tax paym ents, the constructive return of the deposit would mean the taxpa yer would owe interest to the United States for the preconversion period that the government held the mone y as a deposit. But the parties agree that in practice the IRS does not charge interest fo r 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 eff ect a “constructive re turn” of a ta xpayer’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 conve rted 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 th e government to apply the convers ion 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 he ld the money. Ford is correct that its interpretation gives meaning to the second se ntence 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 retroa ctive conversion. We will not r ead the theory of retroactive conversion into section 5.05 merely to rescue on e sentence from surplusa ge when that reading
would frustrate or violate othe r provisions of Revenue Proce dure 84-58, including the numerous provisions stating that taxpayers are not ent itled 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 construc tions is not absolute” and should be abandoned where it would lead to an interpretation that is in consistent with the plai n text of the statute).
Nor would Ford’s interpretation be consistent with the general policy and structure of Revenue Procedure 84-58, which presumptively treat s 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 th e 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 remittan ce 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 immedi ate 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 de triment that cash-bond deposits entail. That would la y waste to the numerous provisi ons of Revenue Procedure 84-58 that bar taxpayers from collecting inte rest 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, th e imaginative th eories that both parties propound— Ford’s argument for interp retive symmetry between §§ 6601 a nd 6611, the government’s theoryNo. 10-1934 Ford Motor Co. v. United States Page 18

of constructive return, and Ford’s theory of retr oactive conversion—are all attempts to tackle the simple fact that the IRS’s whimsical trea tment of deposits and conversions might be ultra vires because the revenue procedures do not contempl ate conversions, and the IRS appears to treat deposits differently in the contexts of underpayme nt 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 converti ng deposits into advance tax payments in order to eliminate disparities in the tr eatment 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 St at. 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 requestthe 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 re turn 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 it s return—to recover in terest 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 re quests the deposit’s conversion, thus illogically rewarding the taxpayer who seeks the return of its deposit over the taxpayer w ho 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 transacti ons, 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 de posit date until the date of th e constructive return and wouldNo. 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 s uggests 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 practic e 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. Taxpa yers who remit deposits today may conclude that they can maxi mize their interest by re questing the return of their deposits instead of converting those deposit s 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 C ongress 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 jointhe majority’s opinion, except for Part III.A. For the compelling reasons given in the remainder of the majority’s opinion, th e 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 c onstruction 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 woul d 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 allocati on of public funds, because of its re sponsiveness to popular views and its ability to weigh interests. This primary responsibility of the legisl ature 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 can not take public funds and give th em to private parties unless it is particularly clear that Congress intended for th e 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.