# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided February 8, 2013

No. 12-5013

C ALVIN K I S UN K IM AND C HUN C HA K IM , A PPELLANTS

v.

U NITED S TATES OF A MERICA , ET AL ., A PPELLEES

______ Appeal from the United States Di strict Court for the District of Columbia (No. 1:08-cv-01660-CKK)

______

Calvin K. Kim and Chun C. Kim , pro se, were on the brief for appellants. Joseph P. Drennan entered an appearance. Kathryn Keneally , Assistant Attorney General, U.S. Department of Justice, Ronald C. Machen

, Jr. , U.S. Attorney, and Michael J. Haungs and Gretchen M. Wolfinger

, Attorneys, were on the brief for appellees.

Before: G ARLAND and B ROWN , Circuit Judges , and W ILLIAMS , Senior Circuit Judge

.2

Opinion for the Court filed by Senior Circuit Judge W ILLIAMS

.

W ILLIAMS , Senior Circuit Judge : Since 2002, Calvin and Chun Kim on the one hand and the Internal Revenue Service on the other have been in re gular corresponde nce regarding the Kims’ alleged failure to file adequate tax returns between 1998 and 2002. This correspondence culminated in the Kims’ filing suit in district court in September 2008. In a previous opinion, we discussed the factual and procedural background at length. See Kim v. United States , 632 F.3d 713, 714-16 (D.C. Cir. 2011).

In Kim , we affirmed the district court’s dismissal of 19 counts of the Kims’ original 21, but reversed and remanded on counts 20 and 21; as to those co unts, the district court had granted the government’s motion to dismiss on the basis of an affirmative defense which the Kims had had no obligation to contradict in their complaint. Id . at 719-20. On remand, the government moved again to di smiss the case, this time arguing that the Kims’ suit was untimely under th e applicable statute of limitations. See 26 U.S.C. § 7433(d)(3). The district court agreed, and dismi ssed the remaining two counts. Kim v. United States , 840 F. Supp. 2d 180 (D.D.C. 2012). We understand the Kims’ pro se appeal to contend that the government had waived the limitations defense by failing to raise it in its first dispositive motion. See Fed. R. Civ. P. 12(g)(2). The government res ponds that limitations defenses under § 7433 are conditions on a waiver of sovereign immunity and therefore jurisd ictional and unwaivable. We express no opinion on th e government’s jurisdictional argument and conclude instead that the government has not forfeited its limitations defense. Rule 12(g)(2) provides that “[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense . . . that was available to the3

party but omitted from its ear lier motion.” Thus the government was seemingly barred from raising the limitations defense in its second motion to dismiss. But Rule 12(h)(2)(A) permits a party to raise a legal defense “in any pleading allowed or ordered under Rule 7(a),” which in turn lists a number of pleadings including an answer to a complaint. See Fed. R. Civ. P. 7(a)(2). The government as yet has filed no answer, but could do so if we remanded. Thus we could reverse and remand, giving the government an opportunity to go through the formality of restating its limitations defense in an answer. But “[w]e can conceive of no reason for such judicial volleyball.” See Stanton v. DC C ourt of Appeals , 127 F.3d 72, 77 (D.C. Cir. 1997). As no forfeiture by the government has yet occurred, and resolution of the issue does not depend on any facts not in the record, addressing the issue here and now in no way prejudices the Kims. See id . at 76- 77.

The merits of the limitations defense turn on whether the right of action underlying count s 20 and 21 accrued within two years of the Kims’ filing the complaint in September 2008. 26 U.S.C. § 7433(d)(3). Th e Kims’ claim is for certain statutorily forbidden types of communications by the IRS in connection with the collecti on of any unpaid tax. See id

. §§ 6303 (describing the IRS’s noti ce requirements for liability assessments); 6304(b) (prohibi ting harassment or abuse “in connection with an unpaid tax”); 7433(a) (creating a damages remedy). None of the events the Kims allege to have occurred within the limitations period, however, is one that could trigger IRS liability under § 7433. The government’s only communication with the Kims in that two-year period took the form of a “Letter 3175C,” which is simply a “letter used . . . to respond to [a] frivolous f iler who send[s] frivolous correspondence to [the] IRS.” Internal Revenue Manual § 4.19.10.1.6 (Feb 24, 2011). Th e letter here was the antithesis of a collection effort: it was a narrow response to4

the Kims’ own correspondence, not an assertive effort to collect allegedly unpaid taxes—mu ch less an abusive one. We have also considered the Kims’ argument that the statute of limitations should have been tolled and find it to be without merit. We accordingly affirm the district court’s dismissal of the Kims’ complaint in its entirety.

So ordered

.