NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-5091

JOHN G. BERG, Plaintiff-Appellant,

v.
UNITED STATES, Defendant-Appellee.

William J. Hughes, Jr. , Cooper Levenson April Niedelman & Wagenheim, P.A., of Atlantic City, New Jers ey, argued for plaintiff-appellant. Samuel A. Lambert , Attorney, Tax Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Eileen J. O’Connor , Assistant Attorney G eneral and Bruce R. Ellisen , Attorney General. Of counsel was Bethany B. Hauser , Attorney. Appealed from: United States Court of Federal Claims Judge Christine O.C. MillerNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-5091

JOHN G. BERG, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

__________________________ DECIDED: February 6, 2007

_______________ ___________

Before MICHEL, Chief Judge , NEWMAN and DYK, Circuit Judges

. MICHEL, Chief Judge

. John G. Berg appeals from the dismissal of his complaint by the United States Court of Federal Claims for lack of subject matter jurisdiction. Berg v. United States , No. 05-1060T (Fed. Cl. Apr. 6, 2006). Bec ause the court correctly concluded that Berg's complaint was not timely filed, we affirm

. I. BACKGROUND This case revolves around Berg's tax liability for calendar years 1986 and 1989, which was assessed at $179,241.20 and $24,468.80, respectively. In 1991, the Internal Revenue Service ("IRS") audited Berg's tax returns for 1986 through 1989. On April 4, 1991, the IRS agent prepared a Form 4549 to reflec t the results of the audit. The reportreflected a $179,241 decrease in tax liability for 1986 as well as an ov erpayment of $179,241. 1 According to the gove rnment, however, this was an error because Ber g never made any pay m ents towards his tax liabili ty for 1986. With respect to 1989, there was a $99 ,559 increase in Ber g 's tax liab ilit y, for a total balan ce of $124,027, plu s interest. On May 20, 1991, in accordance with the audit results, the IRS abated the previously assessed 1986 tax liability and a ssessed an additional $99,559 for 1989. Since that time, the IRS has sent Berg nu merous notices conc erning his outstanding balanc e. It also filed federal tax liens on Berg's property on July 8, 1994, Jun e 9, 1995 and January 30, 2004. In 1998, it applied an overpayment to his 1997 tax liability against his outstanding balanc e for 1989 in lieu of issuing him a refund. In 2004, the IRS began levying and seizing Berg's social security payments. Meanwhile, on April 11, 1995, Berg filed a Form 656, offering to settle his 1989 tax liability for $10; he later s ubmitted a second offer of compromi se in Febr uary 1999. The IRS rejected the fi rst offer on Augus t 4, 1995 and the second on July 30, 2002. On July 12, 2004, Berg filed a complaint in t he United States District Court for the Eastern District of Pennsylvania, seeking a writ of mandamus to enforce the "settlement agreement" (namely, the Form 4549) conc erning his 1986 tax liability. He urged the district court to compel the IRS to refund him $45,182.23, i.e. , the difference between his overpay ment in 1986 and his outstanding tax liability for 1989. On April 12, 2005, the district court dismi ssed the case for lack of jurisdiction

. Berg v. Sn ow , 2005 U.S. Dist. LEXIS 6322 (E.D. Pa. Ap r. 12, 2005). Berg's allegation

1 Berg contends that he is also owed $76,198 in interest.

2006-5091 2that the parties had reached a " s ettlement" wa s admitted in the answer. Accordingly, the order noted that "both par ties admit to entering in to [a] settlement agreement following the 1991 audit." Id. at *3. Because it was a contract claim against the government for an amount over $10,000, however, the district court concluded that the United States Court of F ederal Claims retained exclus ive juris d iction. Id. a t * 6

. B e r g moved for reconsideration, but the motion was denied. On October 3, 2005, Berg f iled a complaint in the Court of Fede ral Claims. On April 6, 2006, the co urt granted the gov ernment's motion to dismiss for lack of subject matter jurisdiction under RCF C 12(b)(1). The court held that the gover n ment was estopped from arguing that the Form 4549 was not a contract due to its admis s ion in the earlier district court proceeding a nd applied the six-year statute of limitat ions set forth in 28 U.S.C. § 2501. 2 B e r g , slip op. at 3-4. Even so, Ber g 's complaint was untimely. The court did not decide when Berg's claim accr ued—on Apr il 4, 1991, when the F o rm 4549 was signed; on May 2, 1991, when the IRS iss ued its first notice for balanc e due; or on August 4, 1995, when the IRS rejected his fi rst compromise offer— in any event, more than six y e ars had elapsed befor e Berg filed his complaint. 3 I d

. slip op. at 5. The court specifically rejected Berg's argument that his claim accrued July 17, 2002, when the IRS rejected his second c o mpromise offer. Berg filed a m o tion for reconsideration, but it was denied on May 22, 2006.

2 Pursuant to 26 U.S.C. § 6511, a thr ee-year statute of limitations would otherwise apply to the fili ng of a tax refund claim.

3 The court observed that even if Berg's complaint in t he Court of Federal Claims had been back dated to July 12, 2004, when his district court complaint was filed, that was sti ll more than six y ears after August 4, 1995. Berg , slip op. at 6.

2006-5091 3Berg filed his notice of appeal on June 5, 2006. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). II. DISCUSSI ON Whether subject matter jurisdiction exists is question law reviewed de novo. Venture Coal Sales Co. v. United States , 370 F.3d 1102, 1104 (Fed. Cir. 2004). Findings of fact relating to jurisdictional is s ues are reviewed for clear error. Banks v. United States , 314 F.3d 1304, 1307 08 (Fed. Cir. 2003). On appeal, Berg has abandoned his argument that his claim accrued on July 17, 2002. Instead, he raises a new argument that his claim di d not accrue until February 2004, when the IRS began lev y ing and seizing his social sec u rity payments. The government responds that Berg's contract cl aim, if any, accrued well before 2004—on April 4, 1991 or at the late st by 1998, when his 1997 refund was applied towards his outstanding tax liability for 1989. Even ass u ming arguendo that the Form 45 49 was a v a lid settlement agreement, we (like the court below) do not find it nec essary to determine exactly when Berg's contract claim accrued. Regardless of wh ether it accrued in 199 1, 1995, or even 19 98, more than six y ears had passed before Berg f iled his complaint in 2005. We expressly reject Berg's theory based on the levy and se izure of his social security payments in February 2004. Nor are we persuaded by his anticipatory br each and continuing violation arguments. We therefore affirm the dism issal of Berg's complaint for lack of subject ma tter jurisdiction. As such, we need not address the parties' alternativ e arguments regarding whether the court erred in finding the gov ernment collate rally estopped by its ear lier

2006-5091 4admission that there was a settlement agreement or whet her the Form 4549 was, in fact, a settl ement agreement.

2006-5091 5