Opinion
Civil Action Number 01-11457-RGS
September 4, 2002
MEMORANDUM AND ORDER ON UNITED STATES' MOTION TO DISMISS
Plaintiff Christopher Conlin claims to have timely filed a 1989 federal income tax return for which a refund of $10,350.00 is owing along with interest and other damages. As Conlin has failed to meet the jurisdictional requirements for maintaining this action, his claim must be dismissed.
Title 26 § 7422 of the United States Code requires the filing of a valid and timely claim for a refund with the Internal Revenue Service before a taxpayer may proceed with a suit in federal district court. See United States v. Dalm, 494 U.S. 596, 609-610 (1990); Little People's School, Inc. v. United States, 842 F.2d 570, 572-573 (1st Cir. 1988). The claim must be filed within three years of the filing of the original return, or within two years of the date the tax was paid if no return was filed. See 26 U.S.C. § 6511(a). To constitute an original return, a document must: (1) be filed on the proper form; (2) purport to be a return; (3) contain sufficient data to calculate tax liability; (4) represent a reasonable attempt to satisfy the requirements of the tax law; and (5) be signed under penalties of perjury. See 26 U.S.C. § 6011; 26 C.F.R. § 1.6011-1(a); 26 C.F.R. § 1.6012-1(a)(6).
The only tax that Conlin claims to have paid, and, thus, the only tax giving rise to his claim of an overpayment is the sum withheld from his salary or wage payments during 1989. Since Conlin's return asserting an overpayment was first filed on April 6, 2000, it was too late, by nearly seven years, to affect any tax paid on or before April 15, 1990. While Conlin submitted a Form 1040X in 1992, that form was returned to him on July 10, 1992, with the explanation that Form 1040X can only be used to amend a prior filed return, and as Conlin had failed to file such a return, the Form 1040X filing was invalid. (Because the original Form 1040X was not processed by the IRS and was returned to the taxpayer, the government claims no knowledge as to its contents.) On April 6, 2000, Conlin submitted a Form 1040 for the 1989 year, along with a copy of the July 10, 1992 letter. This did not meet Conlin's jurisdictional requirement (for better or worse) that a timely return be filed. See Kay v. United States 2000 WL 692160, *1 (9th Cir. 2000) ("The rule is clear that if a refund claim does not comply with 26 U.S.C. § 7422(a) and the regulations, the suit must be dismissed.") Accordingly, the United States' motion to dismiss must be ALLOWED.