### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-60011 Summary Calendar

W. E. DAVIS, as Administrator of the Estate of Anthony Walker Smith, Deceased, Plaintiff - Appellant
v. UNITED STATES OF AMERICA, Defendant - Appellee

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:11-CV-34

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. PER CURIAM: * Be f o r e the Court is Plaintiff-Appellant W. E. Davis’s (“Davis”) appeal of the district court’s dismissal, for lack of subject matter jurisdiction, of his action for a refund of previo u s l y p a i d taxes on the estate of Anthony Walker Smith (“Smith”). We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D June 28 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , thecourthas det erm inedthat thi s op inion should not * * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-60011 Document: 00511903461 Page: 1 Date Filed: 06/28/2012No. 12-60011 FA C T U A L A N D P R O C E D U R A L BA C K G R O U N D The facts of this case are not in dispute. Davis is the administrator of the estate of decedent Smi t h. On or about February 3, 2003, Davis, on behalf of Smith’s estate, filed an income tax return reporting a tax liability of $491,521. Included in that liability were taxes owed as the result of Smith’s ownership of

a fee simple interest in property described as Wyatt Farm. The estate completed payment on the tax liability, plus interest and penalties, on April 17, 2 003. Prior to filing this tax return, however, Smith’s father, Raymond Smith, filed suit in the Chancery Court of Tate County, Mississippi, against Smith’s estate, seeking reformation of the deed conveying Smith’s interest in Wyatt Farm. See Davis v. Smith , 922 So.2d 814, 817 (Miss. Ct. App. 2005) (noting suit filed Ap r i l 12, 2002). Raymond Smith argued that the deed contained a scrivener’s error that omitted an intended r e servation of a life estate on the property for Raymond Smith. See id. On November 3, 2003, the Chancery Court found a mutual mistake existed and reformed the deed to reserve a life estate for Raymond Smith. Id. The estate appealed the decision to the Mississippi Court of Appeals, which affirmed the Chancery Court on August 16, 2005. See id. at 814. On March 2, 2006, the Mississippi Supreme Court denied certiorari. See Davis v. Smith , 927 So. 2d 750 (Miss. 2006). Thereafter, on or about November 4, 2008, the estate filed an administrative cla i m f o r a refund from the Internal Revenue Service (“IRS”), asserting that the estate overpaid federal taxes by $215,323. The basis for the refund claim was that the value of Smith’s interest in Wyatt Farm had been overstated due to the estate’s mistaken understanding that Smith owned Wyatt Farm in fee simple, unencumbered by a life estate. The overstatement resulted in an overpayment of federal taxes. On February 19, 2009, the IRS disallowed the estate’s refund claim on the ground that it was not timely filed. The IRS cited the provisions of § 6511 of the

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Internal Revenue Code, which section requires that a claim for refund be filed within three years from the filing of a tax return, or two years from the payment of the tax, whic h ever is later. See 26 U.S.C. § 6511(a). As the estate’s refund claim for the estate tax had been filed more than three years after the filing of t he tax return for that tax, and more than two-years after payment of the tax , the IRS found the refund claim untimely. Davis, on behalf of Smith’s estate, filed the instant tax refund suit in federal district court on February 18, 2011. The United States of America (the “Government”) filed a motion to dismiss for lack of subject-matter jurisdiction, arguing that the failure to file a timely refund claim with the IRS divested the district court of jurisdiction over the suit. On December 15, 2011, the district 1 court granted the Government’s motion and dismissed the s u i t

. This timely appealed followed. S TA N D A R D O F R E V I E W We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12 (b ) (1) for lack of subject-matter jurisdiction. Lane v. Hallib u r t o n , 529 F.3d 548, 557 (5th Cir. 2008). A court may find a lack of subject-matter jurisdiction by evaluating one of three sets of sub missions: “(1) the complaint alone; (2) the complaint supplemented by undisp u t ed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Ramming v . U n i ted States , 281 F.3d 158, 1 6 1 ( 5 th Cir. 2001) (citing Barrera-Montenegro v. United States , 74 F.3d 657, 659 (5th Cir. 1996)).

See 26 U. S. C. § 7422( a) (pro viding “[n]o sui t .

. . sha ll be mai ntain ed in any cour t for 2 the rec overy of any inte rnal revenu e tax allege d to have been err oneo usl y . . . ass es se d or coll ect ed

. . . until a clai m for ref und or cre dit has been duly fil ed wi th the Sec ret ary, acc ord ing to the pr ovis ions of law in that regar d” ); Duff ie v. Uni ted Sta tes , 600 F.3d362 , 384 (5t h Cir. 2 0 10) (“A taxp ayer’ s fai lure to fil e a tim ely ref und clai m wi th the IRS dep rives the d i s t r i c t cour t of subject -m att er juris dic tio n.” ). 3 Case: 12-60011 Document: 00511903461 Page: 3 Date Filed: 06/28/2012No. 12-60011
AN A L Y S I S Davis argues that the district court erred in dismissing the instant suit for lack of subject matter jurisdiction. Davis c o n c e d e s that his administrative refund claim was untimely under § 6511, and that an untimely claim divests the court of jurisdiction. Nevertheless, Davis argues that the district court had the authority to equitably toll the statute’s time-limits, and that he deserved such tolling on the ground that the estate could not have known that the property would be encumbered b y a l i f e estate until the Mississippi Supreme Court denied certiorari on March 2, 2006. Davis argues the three-year time

- l i mit in § 6511 should only have begun to run at that point, rendering his November 4, 2008 refund request timely. Davis’s argument, however, is foreclosed by Supreme Court p recedent. Most recently, in United States v. Brockamp , 519 U.S. 347 (1997), the Supreme Court held that courts could not “toll, for nonstatuto r y e q u itable reasons, the statutory time (and related amount) limitations for filing tax refund claims set forth in § 6511 of the Internal Revenue Code of 1986[.]” See id. at 348. Davis’s appeals to Irwin v. Department of Veterans Affairs , 498 U.S. 89 (1990), and the Court’s statement therein that the “same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States,” see id. at 95–96, is unavailing. Brockamp squarely confronted that presumption and found it rebutted by the language in § 6511 and other portions of the Tax Code, as well as the practical consequences of “forcing the IRS to respond to, and perhap s l itigate, large numbers of late claims” whe n i t a l r e ady issued more than 90 million refunds a year. See 519 U.S. at 350–52. Davis’s attempt to distinguish the justifi c a t i o n for equitable tolling in Brockamp from that i n t h i s case fares no better. In Brockamp , plaintiffs consisted o f m entally disabled individuals who, by reason of their disability,

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were unable to meet § 6511’s filing re q u i r e m e nts. Id. at 348. Nonetheless, Bockamp did not limit itself to equitable tolling resulting from disability, but considered equitable tolling generally. See generally id. I n d e e d , the Supreme Court, in earlier precedent, expressly rejected Davi s ’ s ar gu m e nt th at courts have equitable power to e a s e § 6 511’s time-constraints where the taxpayer was ignorant of the basis of his refund claim prior to the time-limit’s expiration. See United States v. Dalm , 494 U.S. 596, 610 n.7 (1990) (“That a taxpayer does not learn until after the limitations period has run that a tax was paid in error, and that he or she has a ground upon which to claim a refund, does not operate to lift the statutory bar.”); see also Bull v. United States , 295 U.S. 247, 259, 260–261 1 (1935) (“The fact that the petitioner relied on the Commissioner’s assessment of estate tax, and believed the inconsistent claim of deficiency of income tax was of

no force, ca n not avail to toll the statute of limitations, which forbade the bringing of any action in 1930 for refund of the estat e t a x p a y ments made in 1921.”). 2 Nor have the Supr e m e C o u rt’s decisions been reversed by Congress’s

a m endment to § 6511, in light of Brockamp , suspending § 6511’s time-l i m i t s

In Da lm , a taxpaye r so ught “equ itab le rec oupm ent, ” wh ere by she coul d be ref unde d 2
a pr evious ly paid gift tax. See id. at 598–99. The taxp ayer so ught the ref und beca use the IRS sub se quent ly det erm ined that the taxp ayer sho uld have paid inco me tax, wh ich the taxp ayer sopaid as partof a set tle me nt. Id. The taxpa yer so ught the re fund , how ever, afte r § 6511’s tim e-l im its had e xpir ed. Id. at600

. Regar dle ss of t he fac t thatt he taxp ayer coul d not have kn ow n that her pr evious gift tax paym ent wa s err oneo us until the IRS noti fie d her of her def icie ncy, the Sup rem e Court held that , “[ u]nd er the plai n language of §§ 6511( a) and 7422( a), the D ist ric t Courtw as barr ed fr omenter taini ng her suitfor a ref und of the tax. ” Id. at 602.
In Bull , the Sup rem e Co urtal low ed the taxp ayer to s eekeq uitab le rec oupm ent of a 3 pr evious ly paid es tat e tax, but by me ans of a clai m for a ref und of a late r- paid inco me tax, wh er e the es tat e tax wa s paid on the sam e tra nsa cti on on wh ich the inco me tax wa s levied

. Id. at 261–63. The Sup rem e Court reas oned that the st atut e of lim itat ions did not bar sui t for
a r efu nd of the inco met ax, even if the bas is of the ref und wa s overp ayme nt due to paym ent of the pr evious es tat e tax. Id. Da lm dis tinguis hed Bull beca use , in Da lm , the taxp ayer so ught ref und of the earl ier- paid tax, as her se ttl em ent for eclo se d sui t for ref und of the late r- paid tax. See Da lm , 494 U. S. at606

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“during any period of such individual’s life that s u c h individual is financially disabled.” See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 3202, 112 Stat. 685 (codified at 26 U.S.C. § 6511(h)). 3 First, this Circuit has found Brockamp ’s general prohibition against equitable tolling continues after Congr e s s ’ s alteration to the code. See PALA, Inc. v. United S t a t e s , 234 F.3d 873, 880 (5th Cir. 2000) (“To the extent that PALA argues for an equitable tolling of the statute of limitations, controlling Supreme Court precedent refutes its position.” (citing Brockamp )); see also Doe v. KPMG, LLP, 398 F.3d 686, 689 (5th Cir. 2005) (relying on Brockamp to hold court could not toll tax code’s provisions limiting time for IRS to assess taxes). Second, the

concerns expressed in Brockamp continue and, indeed, have been enhanced by Congress’s amendment. The amendment did not change tax code’s strict language limiting the time for refund requests, and did not affect the Supreme Court ’ s concern that equitable tolling conflicts with § 6511’s numerous timelimits; indeed, Congress has simply added one more. See Brockamp , 519 U.S. at 351–52 (noting “§ 6511 sets forth explicit exceptions to its basic time limits, and those very specific exceptions do not include ‘equitable tolling’”). Third, despite 4 the fact that “deductions from congress io n al in ac tio n ar e notoriously unreliable,” Perez v. United States , 167 F.3d 913, 917 (5th Cir. 1999), the fact that Congress decided to toll § 6 5 1 1 ’ s limits for “financial disability,” but not for ignorance, despite clear Supreme Court authority prohibiting tolling for tha t p urpose, is further evidence that Brockamp ’s reading is correct. See KPMG , 398 F.3d at 689 (“Congress’s decision to specify further exceptions to the statute of

D avis doe s not argue thatt he ame ndm ent app lies int his c ase . 4
This conc ern is magnif ied here , as Davis se ek s to tol l § 6511’s three -yeartimelimit , 5 but not the se cti on’s tw o-ye ar tim e lim it, pr es umably beca use the latt er wo uld not pr ovide Da vi s a s u f

f i cien t amo unt of tim e fr om the poi nt at wh ich he pr opo se s to st art the cloc k. Davis pr ovide s no argum ent, how ever, wh y the thr ee- ye a r l i m it wo uld be the app rop riat e tim ing-p rovis ion to tol l. 6 Case: 12-60011 Document: 00511903461 Page: 6 Date Filed: 06/28/2012No. 12-60011

limitations—without adding a gene r al equitable tolling provision—further justifies the Supreme Court’s reading of the statute in Brockamp .”) Accordingly,

we find Brockamp controlling and hold that the d i s t r i c t court did not err in refusing to toll § 6511’s time-limits. Davis nevertheless argues that, so read, § 6511 violates his rights to due
proces s under the Fifth Amendment because it bars his access to a forum in which to litigate his meritorious claim. Statutes of limitations necessarily have this effect, however, and th e y h av e long been upheld as constitutional. See Atchafalaya Land Co. v. F.B. Will i a m s Cypress Co. , 258 U.S. 190, 197 (1922) (upholding statute of limitations against du e p rocess challenge); see also Soriano v. United States , 352 U.S. 270, 273–77 (1957) (upholding statute of limitations fo r s u its against United States; refusing to equitably toll statute for war). Further, Davis had an opportunity to litigate the estate’s claim. Even prior to filing the estate’s tax return, Smith’s father filed suit alleging Smith’s interest in the property was encumbered by a life estate. Moreover, prior to the running of § 6511’s time-limits, the Chancery Court ruled in favor of Smith’s father and encumbere d S mith’s interest with a life estate and the Mississippi Court of Appeals upheld that decision. Although the Mississippi Supreme Court had not yet denied certiorari , Davis could have filed a protective claim with the IRS to preserve the estate’s interest in the refund. See I.R.S. Revenue Procedure 2002- 52 (providing procedure to file protective claim); PALA, Inc. , 2 3 4 F

. 3 d at 880 (noting “PALA could have filed a protective claim for a refund as early as 1994,” prior to expiration of time-limits, to preserve claim); Swietlik v. United States , 779 F.2d 1306, 13 0 7 ( 7 t h C ir. 1985) (“If a claim for refund is contingent or uncertain i n a m o u n t or, as here, both, the proper procedure is to file a conditional claim before the statute of limitations runs out; if you fail to do that the statute of limitations will bar the refund.”). Accordingly, we find Davis’s due process claim to be without merit.

7 Case: 12-60011 Document: 00511903461 Page: 7 Date Filed: 06/28/2012No. 12-60011 C O N C L U S I O N For the reasons stated above, the order of the district court is AFFIRMED.

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