     Case: 14-31164   Document: 00513200959     Page: 1   Date Filed: 09/21/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                 No. 14-31164                            FILED
                                                                 September 21, 2015
                                                                    Lyle W. Cayce
KATHRYN ROTHKAMM,                                                        Clerk

             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; INTERNAL REVENUE SERVICE,

             Defendants - Appellees




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Plaintiff-Appellant Kathryn Rothkamm and her husband filed separate
tax returns. Rothkamm’s husband incurred a tax liability, and the IRS levied
her account at a bank, which she asserts was her separate property. She
initially sought a Taxpayer Assistance Order (“TAO”) through the Taxpayer
Advocate Service but obtained no relief. She then filed an administrative claim
and, when that was denied, filed this suit for wrongful levy. The IRS filed a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) on the ground
that the suit was untimely under the applicable nine-month statute of
limitations and had not been tolled by her TAO application. The district court
concluded that Rothkamm was not a “taxpayer” for purposes of the TAO
    Case: 14-31164    Document: 00513200959     Page: 2   Date Filed: 09/21/2015



                                 No. 14-31164
statute, 26 U.S.C. § 7811, and that, even if she was, § 7811(d) would not toll
the running of the statute of limitations in this case. Accordingly, the district
court dismissed for lack of subject matter jurisdiction. Rothkamm appealed,
arguing both that she is a “taxpayer” under section 7811 and that the nine-
month statute of limitations was tolled by her TAO application. For the reasons
set forth below, we agree on both grounds and therefore reverse and remand.
                            I.    BACKGROUND

      Plaintiff-Appellant Kathryn Rothkamm and Defendants-Appellees
United States of American and the Internal Revenue Service (collectively the
“Government” or “IRS”) agree on the relevant facts, as the district court set out
below:
            Rothkamm is the owner of a certificate of deposit
            maintained in an account at IberiaBank, located at
            7325 Highland Road, Baton Rouge, Louisiana. On
            March 6, 2012 the Internal Revenue Service (“IRS”)
            issued to IberiaBank a Notice of Levy for Rothkamm’s
            account to satisfy certain tax liabilities of Kathryn’s
            husband, Chester J. Rothkamm, Jr. Thereafter, on
            April 18, 2012, IberiaBank remitted to the IRS the full
            contents of Rothkamm’s account, consisting of
            $73,360.41.

            Less than two weeks later, on April 30, 2012,
            Rothkamm attempted to challenge the IRS’s levy by
            filing an application for assistance with the Taxpayer
            Advocate Service (“TAS”). On October 11, 2012, having
            determined that it “was unable to provide any
            assistance to [Rothkamm],” the TAS “closed”
            Rothkamm’s case.

            Still seeking relief, on May 15, 2013 Rothkamm filed
            with the IRS an administrative claim for wrongful levy
            pursuant to 26 U.S.C. § 6343(b). The IRS denied
            Rothkamm’s claim on July 1, 2013. Finally, on
            September 6, 2013, Rothkamm sued the IRS for
            wrongful levy in this Court, pursuant to 26 U.S.C.
                                       2
     Case: 14-31164       Document: 00513200959          Page: 3     Date Filed: 09/21/2015



                                       No. 14-31164
              § 7426. On November 8, 2013, the Government filed
              the motion to dismiss that is the subject of this Order. 1

       Rothkamm filed this suit for wrongful levy under 26 U.S.C. § 7426(a)(1),
which provides:
              (1) Wrongful levy.--If a levy has been made on
              property or property has been sold pursuant to a levy,
              any person (other than the person against whom is
              assessed the tax out of which such levy arose) who
              claims an interest in or lien on such property and that
              such property was wrongfully levied upon may bring a
              civil action against the United States in a district court
              of the United States. Such action may be brought
              without regard to whether such property has been
              surrendered to or sold by the Secretary. 2

Section 7426(i) provides that the nine-month statute of limitations in 26 U.S.C.
§ 6532(c) applies; this period may be tolled by filing an administrative claim
for return of the wrongfully levied property under 26 U.S.C. § 6343(b). 3
       As the district court explained, the IRS levied Rothkamm’s account on
April 18, 2012. Thus, the general statute of limitations would have expired on
January 18, 2013, absent any tolling. Rothkamm’s administrative wrongful
levy claim, which she filed on May 15, 2013, would toll the running of the
statute of limitations if filed within the statute of limitations. Thus, the core
question is whether, as Rothkamm contends, the statute of limitations was
tolled while her application for a TAO was pending before the TAS. If so, her
administrative claim under § 6343(b) would also have been timely, and the
statute of limitations for filing suit would have been suspended until January




       1 Rothkamm v. United States, No. 3:13-CV-00589-BAJ, 2014 WL 4986884, at *1 (M.D.
La. Sept. 15, 2014) (footnote and record citations omitted).
       2 26 U.S.C. § 7426(a)(1).
       3 26 U.S.C. § 6532(c)(1) (generally concerning “suits by persons other than taxpayers”).

                                              3
     Case: 14-31164       Document: 00513200959         Page: 4     Date Filed: 09/21/2015



                                       No. 14-31164
1, 2014, months after this suit was filed on September 6, 2013.” 4 The district
court summarized the key question and the parties’ arguments as follows:
              To the extent that it is not already clear, the parties
              concede that the dispositive issue is whether
              Rothkamm’s April 30, 2012 application for assistance
              to the TAS tolled the 9-month period of limitations for
              filing her wrongful levy suit. Rothkamm insists that
              her application to the TAS stopped the clock on her
              wrongful levy claim because she “is able to use the
              suspension of the statute of limitations provided by [26
              U.S.C. §] 7811(d).” The Government disagrees,
              arguing: (1) 26 U.S.C. affords relief to “taxpayer[s]”
              and, as it relates to this case, Rothkamm “is not a
              taxpayer under any definition because she was not
              subject to a tax”; and (2), even if Rothkamm is a
              taxpayer within the meaning of section 7811, she is not
              entitled to tolling pursuant to section 7811(d) because
              “the suspensions of the statute of limitations periods
              [described there] are for IRS actions, not taxpayer
              [actions][.]” 5

       The district court therefore concluded that Rothkamm was not a
“taxpayer” for purposes of the TAO statute, 26 U.S.C. § 7811, and even if she
was, the statute could not toll the running of the statute of limitations. 6 Thus,
the district court concluded that it had no subject matter jurisdiction to hear
Rothkamm’s claim against the IRS, granted the IRS’s motion to dismiss, and
dismissed Rothkamm’s suit with prejudice. Rothkamm appealed.
                             II.     Standard of Review

       We review the district court’s dismissal for lack of subject matter
jurisdiction under Rule 12(b)(1) de novo. 7 The central question is whether



       4  Rothkamm, 2014 WL 4986884, at *2 (record citations omitted).
       5  Id. (record citations omitted).
        6 Id. at *3.
        7 Davis v. United States, 597 F.3d 646, 649 (5th Cir. 2009) (citing St. Tammany Parish

ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009)).
                                              4
    Case: 14-31164       Document: 00513200959          Page: 5     Date Filed: 09/21/2015



                                      No. 14-31164
Congress intended to waive sovereign immunity under these particular
circumstances. The Supreme Court has “said on many occasions that a waiver
of sovereign immunity must be ‘unequivocally expressed’ in statutory text.” 8
             Legislative history cannot supply a waiver that is not
             clearly evident from the language of the statute. Any
             ambiguities in the statutory language are to be
             construed in favor of immunity . . . so that the
             Government’s consent to be sued is never enlarged
             beyond what a fair reading of the text requires.
             Ambiguity exists if there is a plausible interpretation
             of the statute that would not authorize money
             damages against the Government. 9

      Nevertheless,
             Although this canon of interpretation requires an
             unmistakable statutory expression of congressional
             intent to waive the Government’s immunity, Congress
             need not state its intent in any particular way. We
             have never required that Congress use magic words.
             To the contrary, we have observed that the sovereign
             immunity canon “is a tool for interpreting the law” and
             that it does not “displac[e] the other traditional tools
             of statutory construction.” Richlin Security Service Co.
             v. Chertoff, 553 U.S. 571, 589, 128 S. Ct. 2007, 170 L.
             Ed. 2d 960 (2008). What we thus require is that the
             scope of Congress’ waiver be clearly discernable from
             the statutory text in light of traditional interpretive
             tools. If it is not, then we take the interpretation most
             favorable to the Government. 10

      In this case, we conclude the district court erred in determining the
definition of “taxpayer” under § 7811 by failing to supply the Internal Revenue
Code’s generally applicable definition set out in § 7701; and the court further




      8 F.A.A. v. Cooper, 132 S. Ct. 1441, 1448, 182 L. Ed. 2d 497 (2012) (citing cases).
      9 Id. (citations omitted).
      10 Id.

                                             5
    Case: 14-31164         Document: 00513200959         Page: 6   Date Filed: 09/21/2015



                                        No. 14-31164
erred in its interpretation of § 7811(d)’s tolling provision by failing to follow the
plain language of the statute and associated regulations.
                                       III.   Analysis

                                  A.     Applicable Law

      Resolution of this appeal turns on the TAO statute, 26 U.S.C. § 7811,
which generally provides:
               (a) Authority to issue.--

                       (1) In general.--Upon application filed by a
                       taxpayer with the Office of the Taxpayer
                       Advocate (in such form, manner, and at such
                       time as the Secretary shall by regulations
                       prescribe), the National Taxpayer Advocate may
                       issue a Taxpayer Assistance Order if--

                              (A) the National Taxpayer Advocate
                              determines the taxpayer is suffering or
                              about to suffer a significant hardship [as
                              defined in § 7811(a)(2)] as a result of the
                              manner in which the internal revenue
                              laws are being administered by the
                              Secretary; or

                              (B) the taxpayer meets such other
                              requirements as are set forth in
                              regulations prescribed by the Secretary. 11

Among other things, the statute provides for tolling of statutes of limitations
during the pendency of an application for a TAO under certain circumstances;
those provisions are discussed below.
      The IRS has issued regulations for section 7811, found in 26 C.F.R. §
301.7811-1. Our interpretation is guided by the Supreme Court’s two-step test




      11   26 U.S.C. § 7811(a).
                                              6
    Case: 14-31164         Document: 00513200959       Page: 7   Date Filed: 09/21/2015



                                        No. 14-31164
set out in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984):
                When a court reviews an agency’s construction of the
                statute which it administers, it is confronted with two
                questions. First, always, is the question whether
                Congress has directly spoken to the precise question
                at issue. If the intent of Congress is clear, that is the
                end of the matter; for the court, as well as the agency,
                must give effect to the unambiguously expressed
                intent of Congress. If, however, the court determines
                Congress has not directly addressed the precise
                question at issue, the court does not simply impose its
                own construction on the statute, as would be necessary
                in the absence of an administrative interpretation.
                Rather, if the statute is silent or ambiguous with
                respect to the specific issue, the question for the court
                is whether the agency’s answer is based on a
                permissible construction of the statute. 12

In this case, not only is the language of the Internal Revenue Code clear and
unambiguous and thus controlling, but the associated regulations are in accord
with the statute.
      B.        Rothkamm Is a “Taxpayer” under Section 7811.
      The district court concluded that Rothkamm cannot be a “taxpayer”
under section 7811, reasoning as follows:
                The Court is persuaded by the Government’s position
                and determines that Rothkamm’s application for
                assistance to the TAS did not toll the 9–month period
                of limitations for filing her wrongful levy suit. First,
                the Court observes that the function of the TAS is to
                “assist taxpayers in resolving problems with the
                Internal Revenue Service.” 26 U.S.C. § 7803(c)(2)(A)(i)
                (emphasis added); see Hyler v. C.I.R., 84 T.C.M. (CCH)
                717 (T.C. 2002), aff’d 104 F. App’x 13 (9th Cir. 2004).
                Despite her protests to the contrary, it is far from clear


      12   467 U.S. at 842-43 (footnotes omitted).
                                               7
    Case: 14-31164     Document: 00513200959     Page: 8   Date Filed: 09/21/2015



                                  No. 14-31164
            whether Rothkamm—a wrongful levy claimant—is a
            “taxpayer” within the meaning of the relevant
            statutes. See 26 U.S.C. §§ 7803(c), 7811; compare
            United States v. Williams, 514 U.S. 527, 535–36 (1995)
            (holding that a party who, though not assessed a tax,
            paid a tax under protest to remove a federal tax lien
            from her property was a “taxpayer” entitled to bring
            administrative tax refund claim), with EC Term of
            Years Trust v. United States, 550 U.S. 429, 435 n. 4
            (2007) (“It has been commonly understood that
            Williams did not extend § 1346(a)(1) to parties in the
            [wrongful levy claimant’s] position.”); see also Wagner
            v. United States, 545 F.3d 298, 303 (5th Cir. 2008). 13

      The district court erred by assuming, without saying so, that the term
“taxpayer” is either undefined in the TAO statute, § 7811, or that it is defined
narrowly to mean only the person against whom a tax is assessed. In fact, the
Internal Revenue Code supplies a default definition of “taxpayer” for all of Title
26 which is broad enough to include Rothkamm in these circumstances. Section
7701 of the Internal Revenue Code, 26 U.S.C. § 7701, provides, in relevant part:
            (a) When used in this title, where not otherwise
            distinctly expressed or manifestly incompatible with
            the intent thereof-- . . .

                   (14) Taxpayer.--The term “taxpayer” means
                   any person subject to any internal revenue tax. 14

      Although the district court cited Williams, it failed to apply it properly.
In Williams, the question was whether the plaintiff, Lori Williams, “who paid
a tax under protest to remove a lien on her property, ha[d] standing to bring a
refund action under 28 U.S.C. § 1346(a)(1), even though the tax she paid was
assessed against a third party.” 15 Section 1346(a)(1) authorized “[a]ny civil



      13 Rothkamm, 2014 WL 4986884, at *3.
      14 26 U.S.C. § 7701(a)(14).
      15 514 U.S. at 529.

                                         8
    Case: 14-31164        Document: 00513200959       Page: 9   Date Filed: 09/21/2015



                                       No. 14-31164
action against the United States for the recovery of any internal-revenue tax
alleged to have been erroneously or illegally assessed or collected.” The
Government argued that “[u]nder 26 U.S.C. § 7422, a party may not bring a
refund action without first exhausting administrative remedies; under 26
U.S.C. § 6511, only a ‘taxpayer’ may exhaust; under 26 U.S.C. § 7701(a)(14),
Williams is not a taxpayer.” 16
      The Government argued that because “taxpayer” was not defined in
§ 6511 to mean “person who paid the tax,” the definition of “taxpayer” must be
supplied by the Internal Revenue Code’s general definition set out in
§ 7701(a)(14), which the Government asserted narrowly meant only the person
against whom a tax was assessed. 17 The Supreme Court disagreed, explaining
that § 7701(a)(14)’s definition of “taxpayer,” which is generally applicable to
the entire Internal Revenue Code, is broad enough to include a person who
pays a tax assessed against another:
             Section 7701(a)(14), defining “taxpayer,” informs us
             that “[w]hen used in [the Internal Revenue Code],
             where not otherwise distinctly expressed or manifestly
             incompatible with the intent thereof, ... [t]he term
             ‘taxpayer’ means any person subject to any internal
             revenue tax.” That definition does not exclude
             Williams. The Government reads the definition as if it
             said “any person who is assessed any internal revenue
             tax,” but these are not Congress’ words. The general
             phrase “subject to” is broader than the specific phrase
             “assessed” and, in the tax collection context before us,
             we think it is broad enough to include Williams. In
             placing a lien on her home and then accepting her tax
             payment under protest, the Government surely
             subjected Williams to a tax, even though she was not
             the assessed party. 18


      16 Id. at 532-33.
      17 Id. at 533-34.
      18 Id. at 535 (footnotes omitted).

                                            9
    Case: 14-31164        Document: 00513200959          Page: 10     Date Filed: 09/21/2015



                                       No. 14-31164
       In rejecting the Government’s argument concerning one of its prior cases
which did not concern the Internal Revenue Code, the Court noted that, if that
case “is relevant at all, it shows our preference for commonsense inquiries over
formalism—a preference that works against the Government’s technical
argument in this case.” 19 Because the Court concluded that § 7701(a)(14)’s
definition of “taxpayer” encompassed Williams, it held that Williams was a
“taxpayer” for purposes of § 6511 and therefore was entitled to exhaust her
administrative remedies, a prerequisite to suit under § 1346(a)(1), which did
not itself use the word “taxpayer.” The Court ultimately concluded that
§ 1346(a)(1) authorized Williams to sue the government to obtain a refund of
the wrongfully collected taxes, reasoning that her claim fell under the broad
terms of § 1346(a)(1) and did not give rise to relief under any other more
specific statute. 20
       Following Williams, Congress did not revise § 7701(a)(14), so the
Supreme Court’s interpretation stands. Thus, under § 7701(a)(14), the word
“taxpayer” means not only the person against whom a tax is assessed (here,
Rothkamm’s husband) but also the person who actually pays the tax (here,
Rothkamm herself). Pursuant to § 7701(a), that definition applies throughout
Title 26 “where not otherwise distinctly expressed or manifestly incompatible
with the intent thereof.”
       The district court in its order and the IRS in its brief on appeal cited EC
Term of Years Trust v. United States, 550 U.S. 429 (2007), apparently for the
proposition that the definition of “taxpayer” is somehow limited to the person
against whom the tax is assessed in the wrongful levy context. 21 That is not


       19 Id.
       20 Id. at 536-38.
       21 See Rothkamm, 2014 WL 4986884, at *3. The only other case cited by the district

court, Hyler v. C.I.R., 84 T.C.M. (CCH) 717 (T.C. 2002), aff’d, 104 F. App’x 13 (9th Cir. 2004),
concerned the finer points of procedure under § 7811 by a person against whom a tax was
                                              10
    Case: 14-31164       Document: 00513200959          Page: 11     Date Filed: 09/21/2015



                                       No. 14-31164
what that case says, however. In EC Term of Years Trust, the plaintiff, a trust,
sued to recover property which it claimed had been wrongfully levied by the
Government. The question was not whether a person in the trust’s position
could be a “taxpayer” under § 7701(a)(14). Indeed, the Williams court had
already held that “subject to” in § 7701(a)(14) means someone who has actually
paid a tax assessed against another, so the trust would meet that definition.
       Rather, EC Term of Years Trust concerned the proper remedy (and thus
statute of limitations) for a third-party payer (i.e., not the assessed taxpayer)
who had paid the tax because of a wrongful levy. 22 The trust had filed suit
under § 1346(a)(1), the same general statute the third-party “taxpayer” had
used in Williams to obtain a refund of the wrongfully paid tax. The
Government argued that the claim was required to be brought under a more
specific statute enacted after Williams, 26 U.S.C. § 7426(a)(1) (the same
statute under which Rothkamm sued in this case), which provided at the time:
“If a levy has been made on property . . . any person (other than the person
against whom is assessed the tax out of which such levy arose) who claims an
interest in . . . such property and that such property was wrongfully levied
upon may bring a civil action against the United States in a district court.” 23
If the trust could bring suit under § 1346(a)(1), its suit would be timely, but it
would be time-barred under § 7426(a)(1)’s stricter nine-month statute of
limitations.
       The Supreme Court noted that the difference was that the plaintiff in
Williams had no means of obtaining relief other than suing under the general
statute, § 1346; whereas Congress had later enacted specific relief for parties


levied and who was subjected to an IRS lien. It said nothing about the definition of “taxpayer”
under § 7811 and did not involve someone who paid a tax assessed against another person.
Thus, it is not relevant to this case.
        22 550 U.S. at 430.
        23 550 U.S. at 431.

                                              11
    Case: 14-31164           Document: 00513200959    Page: 12   Date Filed: 09/21/2015



                                       No. 14-31164
in the same position as the trust, § 7426, which carried a much shorter nine-
month statute of limitations. More fully:
                 The Trust argues that in United States v. Williams,
                 514 U.S. 527, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995),
                 we construed the general jurisdictional grant of
                 § 1346(a)(1) expansively enough to cover third parties’
                 wrongful levy claims. So, according to the Trust,
                 treating § 7426(a)(1) as the exclusive avenue for these
                 claims would amount to a disfavored holding that
                 § 7426(a)(1) implicitly repealed the pre-existing
                 jurisdictional grant of § 1346(a)(1). See Radzanower v.
                 Touche Ross & Co., 426 U.S. 148, 96 S. Ct. 1989, 48
                 L.Ed.2d 540 (1976); Morton v. Mancari, 417 U.S. 535,
                 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974).

                 But the Trust reads Williams too broadly. Although we
                 decided that § 1346(a)(1) authorizes a tax-refund claim
                 by a third party whose property was subjected to an
                 allegedly wrongful tax lien, we so held on the specific
                 understanding that no other remedy, not even a timely
                 claim under § 7426(a)(1), was open to the plaintiff in
                 that case. See Williams, supra, at 536–538, 115 S. Ct.
                 1611. Here, on the contrary, the Trust challenges a
                 levy, not a lien, and could have made a timely claim
                 under § 7426(a)(1) for the relief it now seeks under
                 § 1346(a)(1). 24

The Court further explained that by enacting § 7426(a)(1), Congress had
impliedly repealed § 1346(a)(1) with respect to taxpayers in the trust’s
position. 25
       Nothing in EC Term of Years Trust concerned the definition of “taxpayer”
found in § 7701(a)(14). The Court did not cite the statute or discuss its
definition because it was not necessary for resolution of the case. Section
7426(a)(1) is not written in terms of “taxpayer” versus “non-taxpayer” but



       24   Id. at 434-35.
       25   Id. at 435-36.
                                            12
    Case: 14-31164    Document: 00513200959      Page: 13     Date Filed: 09/21/2015



                                  No. 14-31164
applies to “any person (other than the person against whom is assessed the tax
out of which such levy arose)” whose property was wrongfully levied to pay a
tax. Such a person is unquestionably “subject to” the tax and therefore is a
“taxpayer” under § 7701(a)(14), but that definition has nothing to do with the
issue presented in EC Term of Years Trust: whether such a person may still
file suit under § 1346(a)(1) or must file suit under the more specific statute,
§ 7426(a)(1).
      All of which is to say that Williams defined “taxpayer” broadly under
§ 7701(a)(14) to include not only the assessed taxpayer but also a person who
actually pays the tax, and EC Term of Years Trust did nothing to alter that
definition. It simply held that a third-party (relative to the assessed taxpayer)
whose property is wrongfully levied must bring suit under § 7426(a)(1) rather
than § 1346(a)(1) because § 7426(a)(1) specifically covers that situation. In this
case, Rothkamm brought suit under § 7426(a)(1) and has always conceded that
the nine-month statute of limitations applies to her case.
      The question here is whether Rothkamm is a “taxpayer” under the TAO
statute, § 7811, such that she could even apply for a TAO in the first place and
potentially toll the running of the statute of limitations under § 7811(d), as
discussed in the next part. Because, under Williams, she is a “taxpayer” under
the default definition set out under § 7701(a)(14), we must determine whether
the TAO statute, § 7811, and the statute creating the Office of the Taxpayer
Advocate, § 7803, “distinctly express” a definition of “taxpayer” that is different
from or somehow “manifestly incompatible” with the default definition set out
in § 7701(a)(14).
      In establishing the Office of the Taxpayer Advocate in § 7803(c),
Congress set out the Office’s general functions as follows:
            (A) In general.--It shall be the function of the Office
            of the Taxpayer Advocate to—

                                        13
   Case: 14-31164          Document: 00513200959       Page: 14   Date Filed: 09/21/2015



                                        No. 14-31164
                       (i) assist taxpayers in resolving problems with
                       the Internal Revenue Service;

                       (ii) identify areas in which taxpayers have
                       problems in dealings with the Internal Revenue
                       Service;

                       (iii) to the extent possible, propose changes in
                       the administrative practices of the Internal
                       Revenue Service to mitigate problems identified
                       under clause (ii); and

                       (iv) identify potential legislative changes which
                       may be appropriate to mitigate such problems. 26

      The other provisions are similarly broad. It is significant that nowhere
in § 7803 did Congress “specifically express” a definition of “taxpayer” more
limited than the one set out in § 7701(a)(14), and nothing in the statute
suggests that § 7701(a)(14)’s broad definition of “taxpayer” is “manifestly
incompatible” with the functions of the Office of the Taxpayer Advocate. If the
purpose of the office is to assist taxpayers in resolving their problems with the
IRS, it is difficult to say that a taxpayer who actually pays a tax assessed
against someone else should be treated worse than the person against whom it
is assessed, absent any statutory language saying so. Indeed, § 7803 has been
amended a few times since Williams was decided in 1995, and Congress has
not redefined “taxpayer” more narrowly.
      Similarly, the statute governing TAOs, § 7811, neither “specifically
expresses” a more limited definition of “taxpayer” nor is “manifestly
incompatible” with § 7701(a)(14)’s broad definition. Most notably, § 7811(a)(1)
provides:
                (a) Authority to issue.--




      26   26 U.S.C. § 7803(c)(2)(A).
                                            14
    Case: 14-31164       Document: 00513200959         Page: 15     Date Filed: 09/21/2015



                                      No. 14-31164
                     (1) In general.--Upon application filed by a
                     taxpayer with the Office of the Taxpayer
                     Advocate (in such form, manner, and at such
                     time as the Secretary shall by regulations
                     prescribe), the National Taxpayer Advocate may
                     issue a Taxpayer Assistance Order if--

                            (A) the National Taxpayer Advocate
                            determines the taxpayer is suffering or
                            about to suffer a significant hardship as a
                            result of the manner in which the internal
                            revenue laws are being administered by
                            the Secretary; or

                            (B) the taxpayer meets such other
                            requirements as are set forth in
                            regulations prescribed by the Secretary. 27

       Again, nothing in the statute suggests a definition of “taxpayer” other
than the default definition supplied by § 7701(a)(14). Because the statute is
clear, we must conclude that the § 7701(a)(14) definition of “taxpayer” applies.
The associated regulations also do not “specifically express” a more narrow
definition of “taxpayer.” 28 Indeed, at least four of the ten example situations
set out in the regulations, all concerning wrongful levies, are written without
specifying whether the TAO applicant is an assessed taxpayer or a third-party
taxpayer who pays the tax assessed to another. 29 In short, neither the statutes
(§§ 7803 and 7811) nor the regulations are “manifestly incompatible” with
§ 7701(a)(14)’s broad definition of “taxpayer.” Thus, the district court erred in
holding that Rothkamm is not a “taxpayer” under § 7811.




       27 25 U.S.C. § 7811(a)(1).
       28 See 26 C.F.R. § 301.7811-1.
       29 See 26 C.F.R. § 301.7811-1(a), Ex. 1 (IRS levies A’s bank account; does not specify

whether A is assessed taxpayer or third-party taxpayer); § 301.7811-1(e), Exs. 1, 2 and 3 (do
not specify whether person subject to levy is an assessed taxpayer or a third-party taxpayer
paying a tax assessed against another).
                                             15
      Case: 14-31164       Document: 00513200959      Page: 16    Date Filed: 09/21/2015



                                       No. 14-31164
        We now turn to the question of whether § 7811(d) tolled the running of
the statute of limitations when Rothkamm filed her TAO application.
 C.      Section 7811 Provides for Tolling under These Circumstances.

        Although the district court concluded that Rothkamm was not a
“taxpayer” under § 7811 and therefore could not avail herself of the TAO
scheme in the first place, it ruled, in the alternative, that the statute would not
allow tolling under these circumstances even if she were a “taxpayer”:
                 But even if the Court assumes for sake of argument
                 that Rothkamm is a taxpayer within the meaning of
                 26 U.S.C. § 7811, she still cannot prevail because a
                 plain reading of section 7811(d) shows that the time
                 periods tolled relate to actions available to the IRS, not
                 actions available to the taxpayer. See 26 U.S.C. §
                 7811(c), (d). This conclusion is reinforced by the
                 relevant administrative regulations, which state
                 unequivocally: “A taxpayer’s right to administrative or
                 judicial review will not be . . . expanded in any way as
                 a result of the taxpayer’s seeking assistance from
                 TAS.” 26 C.F.R. § 301.7811–1 (emphasis added); see
                 Demes v. United States, 52 Fed. Cl. 365, 373 (Fed. Cl.
                 2002) (“I.R.C. § 7811(a) . . . . does not go to the tolling
                 of the statute of limitations in court, but rather confers
                 the IRS with discretion to effect tolling upon a
                 taxpayer’s request. Plaintiffs therefore cannot sue in a
                 court for a refund under this provision, nor can the
                 court use it as a basis to toll the statute of limitations
                 in plaintiffs’ case:” (emphasis added)); cf. Qureshi v.
                 United States, 200 F. App’x 973, 975 (Fed. Cir. 2006)
                 (unpublished but persuasive) (“[I.R.C. § 7811(a)]
                 merely confers the IRS with discretion to provide a
                 taxpayer with relief under certain circumstances.”). 30

We conclude the district court erred because the plain language of the statute
(and the associated regulations) provides for tolling in this situation.



        30   Rothkamm, 2014 WL 4986884, at *3.
                                             16
      Case: 14-31164         Document: 00513200959     Page: 17    Date Filed: 09/21/2015



                                        No. 14-31164
 1.      The Plain Language of Section 7811 Provides for Tolling Here.

        Section 7811(a) provides that the “National Taxpayer Advocate may
issue a Taxpayer Assistance Order” under appropriate circumstances. Section
7811(b) provides:
                 (b) Terms of a Taxpayer Assistance Order.--The
                 terms of a Taxpayer Assistance Order may require the
                 Secretary within a specified time period--

                         (1) to release property of the taxpayer levied
                         upon, or

                         (2) to cease any action, take any action as
                         permitted by law, or refrain from taking any
                         action, with respect to the taxpayer under--

                                (A) chapter 64 (relating to collection),

                                (B) subchapter B of chapter 70 (relating to
                                bankruptcy and receiverships),

                                (C) chapter 78 (relating to discovery of
                                liability and enforcement of title), or

                                (D) any other provision of law which is
                                specifically described by the National
                                Taxpayer Advocate in such order. 31

        Section 7811(d) provides:
                 (d) Suspension of running of period of
                 limitation.--The running of any period of limitation
                 with respect to any action described in subsection (b)
                 shall be suspended for--

                         (1) the period beginning on the date of the
                         taxpayer’s application under subsection (a) and
                         ending on the date of the National Taxpayer




        31   26 U.S.C. § 7811(b).
                                              17
    Case: 14-31164        Document: 00513200959           Page: 18   Date Filed: 09/21/2015



                                       No. 14-31164
                      Advocate’s decision          with    respect   to   such
                      application, and

                      (2) any period specified by the National
                      Taxpayer Advocate in a Taxpayer Assistance
                      Order issued pursuant to such application. 32

      By its plain terms, § 7811(d)(1) applies to toll the running of any statute
of limitations for any action described in § 7811(b) from the time the taxpayer
files an application for the optional TAO until a decision is reached. Section
7811(d)(1) does not require that a TAO actually be issued or that any relief be
granted. It simply provides that any statute of limitation for an action
described in subsection (b) is tolled from the time an application is filed until
the National Taxpayer Advocate reaches a decision.
      It is plain from the language of the statute that because subsection (d)
applies to all of subsection (b), it benefits both the IRS and the taxpayer,
essentially pausing the running of the statutes of limitations applicable to both
parties so that neither one is prejudiced by the TAO process. For instance,
subsection (d), through subsection (b)(2)(A), tolls the statute of limitations for
collection actions by the IRS, meaning the IRS does not lose any time to pursue
collections when a taxpayer pursues a TAO. Likewise, subsection (d), through
subsection (b)(1), tolls the statute of limitations for actions “to release property
of the taxpayer levied upon.” By definition, such an action is one by the
taxpayer, and any tolling on such an action necessarily benefits the taxpayer.
(It is also, of course, precisely the action at issue in this case.) Thus, the
taxpayer may pursue a TAO without fear that the process—which Congress
expressly designed to assist taxpayers—will prejudice her administrative or
judicial rights in the event she does not obtain TAO relief. Subsection (d)’s
plain language means that neither the IRS nor the taxpayer is any worse off


      32   26 U.S.C. § 7811(d) (emphasis added).
                                             18
   Case: 14-31164     Document: 00513200959     Page: 19   Date Filed: 09/21/2015



                                 No. 14-31164
when a taxpayer decides to pursue TAO relief because all relevant statutes of
limitations are tolled. Under the plain terms of the statute, this tolling occurs
automatically until the National Taxpayer Advocate reaches a decision on the
TAO application, without regard to any discretion on the part of the IRS.
      Several cases and secondary authorities, tracking the language of
§ 7811(d) confirm that the statute of limitations is tolled during the pendency
of an application for a TAO, with no reference to any exception or any discretion
on the part of the IRS to allow or disallow the tolling. See United States v.
Carinos Ambulance Serv., Inc., 654 F. Supp. 2d 52, 59-60 (D.P.R. 2009) (noting
that the statute of limitations under 26 U.S.C. § 6502 is tolled from “the date
the taxpayer submits Form 911 (Application for Taxpayer Assistance Order)
until the date when the National Taxpayer Advocate decides with regards to
the submitted application, (26 U.S.C. § 7811(d)(1))”); In re Turner, 182 B.R.
317, 329 (Bankr. N.D. Ala. 1995), adhered to on reconsideration, 195 B.R. 476
(Bankr. N.D. Ala. 1996) (noting that the statutes of limitation under 26 U.S.C.
§§ 6501(c)(4) and 6502(a) “are suspended when the taxpayer files an
application for a Taxpayer Assistance Order, and do not resume until the IRS’s
Taxpayer Ombudsman makes a decision on the taxpayer’s application.” (citing
§ 7811(d))); In re Gore, 182 B.R. 293, 304 (Bankr. N.D. Ala. 1995) (same); 20A
Federal Procedure, Lawyers Edition § 48:1497 (“The running of any period of
limitation with respect to any action for the issuance of a taxpayer assistance
order will be suspended for: (1) the period beginning on the date of the
taxpayer’s application for taxpayer assistance and ending on the date of the
National Taxpayer Advocate’s decision with respect to such application . . . .”);
34 Am. Jur. 2d Federal Taxation ¶ 70627 (“The running of any limitations
period . . . with respect to any action related to TAO . . . is suspended for (a)
the period beginning on the date of the taxpayer’s application for the TAO and


                                       19
    Case: 14-31164     Document: 00513200959       Page: 20   Date Filed: 09/21/2015



                                    No. 14-31164
ending on the date of the National Taxpayer Advocate’s decision on the
application . . . .” (footnote omitted)).
      Here, Rothkamm filed an application for a TAO for return of property
subject to a wrongful levy, which is one of the proper subjects of a TAO under
§ 7811(b). Under the plain terms of § 7811(d)(1), “[t]he running of any period
of limitation with respect” to that wrongful levy action was tolled from the time
she filed her application until the time a decision was made on it. The nine-
month statute of limitations for an action under § 7426(a) certainly qualifies
as “any period of limitation” for a wrongful levy action, so it was tolled until a
decision was made on her TAO application. Because her claim was tolled while
she pursued the TAO, her later administrative wrongful levy claim under
§ 6343(b) was timely and, in turn, tolled her claim so that this suit was timely.
     2.    There Is No Controlling Support for the District Court’s
                             Conclusion.

      In agreeing with the IRS’s argument that “a plain reading of section
7811(d) shows that the time periods tolled relate to actions available to the
IRS, not actions available to the taxpayer,” the district court did not discuss
the language of § 7811(d) itself, and the sources it cited cannot change the fact
that the plain language of the statute provides for automatic tolling from the
time the TAO application is filed until a decision is reached. In addition to
citing § 7811(d), the district court cited § 7811(c), which provides:
             (c) Authority to modify or rescind.--Any Taxpayer
             Assistance Order issued by the National Taxpayer
             Advocate under this section may be modified or
             rescinded--

                    (1) only by the National Taxpayer Advocate, the
                    Commissioner of Internal Revenue, or the
                    Deputy Commissioner of Internal Revenue, and



                                            20
    Case: 14-31164         Document: 00513200959    Page: 21   Date Filed: 09/21/2015



                                     No. 14-31164
                       (2) only if a written explanation of the reasons
                       for the modification or rescission is provided to
                       the National Taxpayer Advocate. 33

Section 7811(c) has nothing to do with tolling. Indeed, § 7811(c) only applies
once a TAO has actually been issued, whereas § 7811(d) applies to toll the
statute of limitations up to the point a decision is reached, either to issue a
TAO or deny relief. Thus, the provision is irrelevant here.
      The district court also quoted the following sentence from 26 C.F.R.
§ 301.7811-1(b): “A taxpayer’s right to administrative or judicial review will
not be diminished or expanded in any way as a result of the taxpayer’s seeking
assistance from TAS.” There are two problems with the district court’s reliance
on that sentence. First, under Chevron, if the language of the statute, §
7811(d), clearly provides for tolling (i.e., a waiver of sovereign immunity), then
that ends the inquiry. The regulation cannot alter what Congress has clearly
set out in the statute. Second, the sentence in the regulation the district court
quotes comes from a subsection generally discussing TAOs and says nothing
specifically about tolling:
                (b) Generally. A TAO is an order by the NTA to the
                IRS. The IRS will comply with a TAO unless it is
                appealed and then modified or rescinded by the NTA,
                the Commissioner, or the Deputy Commissioner. If a
                TAO is modified or rescinded by the Commissioner or
                the Deputy Commissioner, a written explanation of
                the reasons for the modification or rescission must be
                provided to the NTA. The NTA may not make a
                substantive determination of any tax liability. A TAO
                is also not intended to be a substitute for an
                established administrative or judicial review
                procedure, but rather is intended to supplement
                existing procedures if a taxpayer is about to suffer or
                is suffering a significant hardship. A request for a TAO


      33   26 U.S.C. § 7811(c).
                                           21
   Case: 14-31164         Document: 00513200959       Page: 22   Date Filed: 09/21/2015



                                       No. 14-31164
              shall be made on a Form 911, “Request for Taxpayer
              Advocate Service Assistance (And Application for
              Taxpayer Assistance Order)” (or other specified form)
              or in a written statement that provides sufficient
              information for the Taxpayer Advocate Service (TAS)
              to determine the nature of the harm or the need for
              assistance. A taxpayer’s right to administrative or
              judicial review will not be diminished or expanded in
              any way as a result of the taxpayer’s seeking
              assistance from TAS. 34

     It is clear from the context that the concluding sentence does not concern
tolling. However, 26 U.S.C. § 301.7811-1(e), part of the same regulation, does
address tolling and tracks the provisions of § 7811(d). Both the relevant
language of section 301.7811-1(e) and the associated examples show that the
running of the statute of limitations is tolled until a decision on the TAO
application is reached. Importantly, this specific subsection on tolling says
nothing about tolling being subject to the IRS’s discretion. Rather, the
regulation notes that the Ombudsman (i.e., the representative of the Office of
the Taxpayer Advocate, not the IRS) has the authority to lengthen—but not
shorten—the period of tolling beyond the decision date:
              (e) Suspension of statutes of limitations--(1) In
              general. The running of the applicable period of
              limitations for any action which is the subject of a
              taxpayer assistance order shall be suspended for the
              period beginning on the date the Ombudsman receives
              an application for a taxpayer assistance order in the
              form, manner, and time specified in paragraph (b) of
              this section and ending on the date on which the
              Ombudsman makes a determination with respect to
              the application, and for any additional period specified
              by the Ombudsman in an order issued pursuant to a
              taxpayer’s application. For the purpose of computing



     34   26 C.F.R. § 301.7811-1(b).
                                           22
Case: 14-31164   Document: 00513200959      Page: 23   Date Filed: 09/21/2015



                             No. 14-31164
        the period suspended, all calendar days except the
        date of receipt of the application shall be included.

              (2) Date of decision. The “date on which the
              Ombudsman makes a decision with respect to
              the application” is the date on which the
              taxpayer’s request for a taxpayer assistance
              order is denied, or agreement is reached with the
              involved function of the Service, or a taxpayer
              assistance order is issued (except that when the
              taxpayer assistance order is reviewed by an
              official who may modify or rescind the taxpayer
              assistance order as provided in paragraph (d) of
              this section, the decision date is the date on
              which such review is completed).

              (3) Periods suspended. The periods of
              limitations which are suspended under section
              7811(d) are those which apply to the taxable
              periods to which the application for a taxpayer
              assistance order relate or the taxable periods
              specifically indicated in the terms of a taxpayer
              assistance order.

        Example 1. On August 31, 1989, the Internal
        Revenue Service levies on funds in the taxpayer’s
        checking account. On September 1, 1989 (at which
        time 7 months remain before the period of limitations
        on collection after assessment will expire on April 1,
        1990) the Ombudsman receives the taxpayer’s written
        application for a taxpayer assistance order.
        Subsequently, on September 6, 1989, the Ombudsman
        determines that the levy has caused a significant
        hardship and the Internal Revenue Service function
        which served the levy agrees to release the levy. The
        levy is released. As a result of the application and the
        decision by the Ombudsman and the involved function
        of the Service resolving the hardship, the statute of
        limitations on collection after assessment is suspended
        from the date the Ombudsman received the
        application, September 1, 1989, until the date on
        which the decision was made to release the levy,
                                  23
Case: 14-31164         Document: 00513200959        Page: 24   Date Filed: 09/21/2015



                                     No. 14-31164
            September 6, 1989. Therefore, the statute of
            limitations on collection after assessment will not
            expire until after April 6, 1990, which is 7 months plus
            5 days after the date on which the application for a
            taxpayer assistance order was received by the
            Ombudsman.

            Example 2. The facts are the same as in example 1
            except that the Internal Revenue Service function
            which served the levy does not agree to release the
            levy, and the Ombudsman, having made a
            determination that the levy is causing a significant
            hardship, issues a taxpayer assistance order on
            September 6, 1989, in which the levy is ordered to be
            released and specifies that the statute of limitations
            on collection after assessment is suspended for an
            additional 15 days. The period of limitations on
            collection after assessment will therefore not expire
            until after April 21, 1990, which is 7 months and 20
            days (5 days plus 15 days) after the application for the
            taxpayer assistance order was received by the
            Ombudsman.

            Example 3. The facts are the same as in example 2
            except that the Ombudsman does not specifically
            suspend the statute of limitations on collection after
            assessment for an additional number of days in the
            taxpayer assistance order, but rather the function
            seeks modification or rescission of the taxpayer
            assistance order and the appropriate official charged
            with that responsibility completes his consideration of
            the assistance order on September 8, 1989. The period
            of limitations on collection after assessment will
            therefore not expire until after April 8, 1990, which is
            7 months and 7 days after the application for the
            taxpayer assistance order was received by the
            Ombudsman. 35




  35   26 C.F.R. § 301.7811-1(e)(1)-(3).
                                           24
    Case: 14-31164        Document: 00513200959           Page: 25     Date Filed: 09/21/2015



                                        No. 14-31164
       Thus, the regulations associated with § 7811(d) do not make the tolling
subject to the IRS’s discretion. The only discretion granted under 26 C.F.R.
§ 301.7811-1(e) is granted to the Ombudsman in the Office of the Taxpayer
Advocate, and even then only to toll the statute of limitations beyond the
decision date. This precludes the argument that the IRS itself has the
discretion to grant or deny tolling.
       The caselaw cited by the district court in support of its conclusion is not
binding and is, at any rate, deeply flawed. Most notably, the district court
relied on Demes v. United States, 52 Fed. Cl. 365, 373 (Fed. Cl. 2002), which
indeed concluded that the IRS has discretion to effect tolling on the taxpayer’s
behalf. The problem is that the Demes court cited no relevant support for that
conclusion. The only authorities it cited—26 U.S.C. § 7811(a), 26 C.F.R.
§ 301.7811-1(c)(3), and Inman v. Comm’r, 871 F. Supp. 1275 (E.D. Ca. 1994)—
say nothing about tolling. 36 Remarkably, the Demes court did not address
either § 7811(d) or 26 C.F.R. § 301.7811-1(e), which actually establish the
tolling rules. 37 Because Demes provided no viable support for its conclusion, it
is not even persuasive authority, nor is any case that relies on Demes. 38
       In sum, the district court failed to construe the plain language of
§ 7811(d) (or even the associated regulation on tolling, 26 C.F.R. § 301.7811-
1(e)), and there is no viable support for its conclusion that the statutes and
regulations somehow give the IRS discretion to determine whether or not a
TAO applicant’s claim is tolled. Congress did not provide the IRS with that
discretion under § 7811(d), and the only discretion granted in the regulations



       36  52 Fed. Cl. at 373.
       37  Id.
        38 The district court also relied on Qureshi v. United States, 200 F. App’x 973, 975 (Fed.

Cir. 2006), which itself cited Demes. Qureshi did not concern the IRS’s supposed discretion to
toll the running of the statute of limitations but its “discretion to provide a taxpayer with
relief under certain circumstances.” Thus, it is inapposite to the question presented here.
                                               25
      Case: 14-31164   Document: 00513200959      Page: 26   Date Filed: 09/21/2015



                                  No. 14-31164
is the discretion granted to the Ombudsman to lengthen the period of tolling
beyond the date of the decision on the TAO application.
 3.      The IRS Has Presented No Viable Alternative Interpretation.

        On appeal, the IRS raises two primary arguments, neither of which has
merit. First, the IRS argues that Congress has directly addressed the question
at issue (i.e., whether § 7811(d) tolls the running of the nine-month statute of
limitations in § 7426(a)) because neither statute references the other statute,
and therefore they cannot affect each other. The IRS does not explain how
Congress may “directly address” something by remaining silent on it, but in
any event § 7811(d) is not silent. As pointed out above, § 7811(d) tolls “[t]he
running of any period of limitation with respect to any action described in”
§ 7811(b), including wrongful levy actions.
        Next, the IRS argues that § 7811(d) cannot toll this wrongful levy action
because “the tolling provisions of § 7811(d) do not mention wrongful levy
actions under § 7426, and the none [sic] of the four categories of ‘actions’ subject
to tolling under § 7811(b)(2) apply to this case.” Again, § 7811(d) provides: “The
running of any period of limitation with respect to any action described in
subsection (b) shall be suspended . . . .” Subsection (b) provides:
              (b) Terms of a Taxpayer Assistance Order.--The
              terms of a Taxpayer Assistance Order may require the
              Secretary within a specified time period--

                    (1) to release property of the taxpayer levied
                    upon, or

                    (2) to cease any action, take any action as
                    permitted by law, or refrain from taking any
                    action, with respect to the taxpayer under
                    [certain other laws].

        The IRS seems to argue that § 7811(d)’s use of the phrase “action
described in subsection (b)” means that only the parts of subsection (b) that

                                        26
    Case: 14-31164    Document: 00513200959       Page: 27   Date Filed: 09/21/2015



                                  No. 14-31164
specifically use the word “action” may be tolled. Under the IRS’s reading, that
would include only subsection (b)(2), which specifically uses the word “action.”
That reading would conveniently exclude subsection (b)(1), which specifically
concerns the wrongful levy action at issue here, simply because the word
“action” is not used in subsection (b)(1). The IRS’s argument ignores the fact
that subsection (d) refers to all of subsection (b), not just subsection (b)(2), and
strains credulity beyond the breaking point.
      In short, the IRS has failed to offer a reasonable alternative construction
of the plain language of § 7811(d), which provides for tolling under the
circumstances presented herein.
                               IV.    Conclusion

      For the reasons set out above, we first conclude that Rothkamm, as the
person who paid a tax assessed against another person, is a “taxpayer” under
the Internal Revenue Code’s default definition, and nothing in the TAO
statute, § 7811, redefines or is manifestly incompatible with that definition.
Next, we conclude that her TAO application tolled the running of the statute
of limitations under the plain language of § 7811(d). Accordingly, we
REVERSE and REMAND for further proceedings consistent with this
proceeding.




                                        27
    Case: 14-31164       Document: 00513200959          Page: 28     Date Filed: 09/21/2015



                                       No. 14-31164
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
       Kathryn Rothkamm claims that the IRS wrongfully levied a certificate
of deposit issued solely in her name to satisfy tax liabilities of her husband.
The Internal Revenue Code provides two different avenues to challenge a
wrongful levy: (1) an administrative appeal; or (2) a lawsuit in federal court.
By either avenue, the aggrieved party must act within nine months of the
levy. 1 Rothkamm did not do so. I dissent from the majority’s newly minted
tolling rule. While this creativity is driven by a desire to achieve fairness, it
suffers the vice common to such endeavors – it does the opposite by
disrupting a carefully structured regime for the resolution of disputes
between the IRS and property owners.
                                              I.
       The IRS has “broad authority” to levy a taxpayer’s property to satisfy
unpaid tax liabilities. 2 Nevertheless, “[a] levy is wrongful if imposed upon
property in which the taxpayer had no interest.” 3 A third party such as
Rothkamm seeking to challenge a wrongful levy has two options: (1) she may
file an administrative request for the return of the property with the IRS 4 or
(2) she may file a civil suit against the United States in federal district court. 5
These options are not mutually exclusive; if the third party’s administrative
request is denied, she may then file a civil suit – although an administrative
request is not a prerequisite to filing suit in federal court. The period of



       1  26 U.S.C. § 6532(c); see United Sand & Gravel Contractors, Inc. v. United States, 624
F.2d 733, 735-36 (5th Cir. 1980).
        2 Oxford Capital Corp. v. United States, 211 F.3d 280, 282-83 (5th Cir. 2000) (per

curiam) (citations omitted).
        3 Id.
        4 See 26 C.F.R. § 301.6343-2(b).
        5 See 26 U.S.C. § 7426(a)(1). The Supreme Court has held that a general tax-refund

claim is not available. See EC Term of Years Trust v. United States, 550 U.S. 429, 433-36
(2007).
                                              28
    Case: 14-31164     Document: 00513200959      Page: 29    Date Filed: 09/21/2015



                                   No. 14-31164
limitation for filing a civil suit can be found at 26 U.S.C. § 6532(c). This
provision provides:
             (1) General rule.--Except as provided by paragraph
             (2), no suit or proceeding . . . shall be begun after the
             expiration of 9 months from the date of the levy or
             agreement giving rise to such action.
             (2) Period when claim is filed.--If a request is
             made for the return of property . . . , the 9-month
             period prescribed in paragraph (1) shall be extended
             for a period of 12 months from the date of filing of
             such request or for a period of 6 months from the date
             of mailing by registered or certified mail by the
             Secretary to the person making such request of a
             notice of disallowance of the part of the request to
             which the action relates, whichever is shorter.
   Rothkamm filed an administrative request and, on its rejection, a civil
suit. To recap the timeline of events:
   • March 6, 2012: The IRS issues a Notice of Levy to a bank of its levy
     upon a bank account that Rothkamm says was her property.
   • April 18, 2012: The bank remits the contents of the account to the IRS.
   • April 30, 2012: Rothkamm files an application for assistance with the
     Taxpayer Advocate Service (“TAS”).
   • October 11, 2012: TAS closes Rothkamm’s case, advising that it is
     unable to provide assistance.
   • May 15, 2013: Rothkamm files an administrative request with the IRS.
   • July 1, 2013: The IRS denies Rothkamm’s administrative request.
   • September 6, 2013: Rothkamm sues the IRS in federal court. 6
The key question in this case is whether Rothkamm’s administrative request
was timely. Under § 6532(c)(2), Rothkamm’s civil action would be timely if
filed within six months of the denial of a timely filed administrative request.



      6 See Rothkamm v. United States, No. 3:13-cv-00589-BAJ-RLB, 2014 WL 4986884, at
*1 (M.D. La. Sept. 15, 2014).
                                         29
   Case: 14-31164         Document: 00513200959       Page: 30    Date Filed: 09/21/2015



                                      No. 14-31164
But § 6532(c)(2) does not apply if an administrative request is untimely – and
an administrative request is untimely if filed more than nine months after
the levy. 7 Rothkamm’s administrative request was filed fourteen months
after the levy. Relying on the terms of the statutory scheme as this court has
read it, the Government thus argues that her civil action is barred by
§ 6532(c)(1) because it was filed more than nine months after the levy.
Rothkamm counters that 26 U.S.C. § 7811(d) tolled the period of limitation
for filing an administrative request while her application for TAS assistance
was pending. If this roughly five-and-a-half-month period is not counted,
Rothkamm’s administrative request was filed within nine months of the levy
and triggered § 6532(c)(2), which, in turn, means that her civil suit was
timely.
                                            II.
                                            A.
      The majority agrees with Rothkamm, bedding its holding in the
perceived “plain” language of 26 U.S.C. § 7811. Two different subdivisions of
§ 7811 are relevant to this case: subdivision (b) and subdivision (d). These
subdivisions provide:
               (b) Terms of a Taxpayer Assistance Order.--The
               terms of a Taxpayer Assistance Order may require
               the Secretary within a specified time period--
                      (1) to release property of the taxpayer levied
                          upon, or
                      (2) to cease any action, take any action as
               permitted by law, or refrain from taking any action,
               with respect to the taxpayer under [chapters relating
               to collection, bankruptcy and receiverships, or
               discovery of liability and enforcement of title].



      7   See United Sand & Gravel Contractors, 624 F.2d at 735-36.
                                            30
    Case: 14-31164        Document: 00513200959          Page: 31     Date Filed: 09/21/2015



                                       No. 14-31164
                      ....
              (d) Suspension of running of period of
              limitation.--The running of any period of limitation
              with respect to any action described in subsection (b)
              shall be suspended for--
                   (1) the period beginning on the date of the
              taxpayer’s application under subsection (a) and
              ending on the date of the National Taxpayer
              Advocate’s decision with respect to such application,
              and
                    (2) any period specified by the National
              Taxpayer Advocate in a Taxpayer Assistance Order
              issued pursuant to such application.
In short, the majority holds that subsection (d) suspends the period of
limitation for “any action described in subsection (b)” and subsection (b)(1)
describes a wrongful levy action. That is, the period of limitation for filing an
administrative request was tolled during the pendency of Rothkamm’s
application for a Taxpayer Assistance Order (“TAO”), and she can rely on
§ 6532(c)(2).
       Appealing in its simplicity, this plain language argument does not
survive closer scrutiny for it steps past critical language. Subsection (d)
provides that an application for a TAO suspends the running of the period of
limitation for “action[s] described in subsection (b).” 8 We should not assume
that Congress’s use of the word “action” was accidental. To the contrary, “[a]
normal rule of statutory interpretation is that when Congress uses the same
word in different parts of a statute, it intended each to carry the same
meaning.” 9 In this case, this rule dictates that “action” has the same
meaning in subsection (b) that it does in subsection (d). That is, subdivision



       826 U.S.C. § 7811(d) (emphasis added).
       9Little v. Shell Exploration & Prod. Co., 690 F.3d 282, 286 (5th Cir. 2012) (citing Dep’t
of Revenue v. ACF Indus., Inc., 510 U.S. 332, 341-42 (1994)).
                                              31
      Case: 14-31164      Document: 00513200959           Page: 32     Date Filed: 09/21/2015



                                        No. 14-31164
(d) suspends the period of limitation only for the suits and proceedings in
subdivision (b) that Congress described using the word “action.” Since
Congress did not use the word “action” in subsection (b)(1), § 7811(d) did not
toll the period of limitation for Rothkamm’s wrongful levy claim – and her
suit is untimely. The majority counters that this reading of § 7811 ignores
that subsection (d) refers to all “action[s]” in subsection (b), not just those in
subsection (b)(2). But this argument fails on its own terms; I contend only
that subsection (b)(1) does not describe an “action,” not that subsection (d)
does not apply to, or embrace, subsection (b)(1). If Congress had intended to
suspend the period of limitation for all suits or proceedings described in
subsection (b), it could have used either of those words – but it chose not to do
so.
        If the language of § 7811 is not clear enough, the larger context and
purpose of subdivision (d) eliminate any residual doubt that this is the proper
interpretation. 10 Although it may seem inequitable that subsection (d) only
suspends the period of limitations for actions brought by the IRS, this was a
sensible choice given that TAS – the agency that issues TAOs – lacks the
power to direct taxpayers to do anything. As a result, nothing prevents a
taxpayer from pursuing other remedies while seeking a TAO. In fact, a TAO
“is intended to supplement existing procedures if a taxpayer is about to suffer
or is suffering a significant hardship,” not “to be a substitute for an
established administrative or judicial review procedure.” 11 TAS can,


        10Though the majority limits its analysis to the language of § 7811, “[t]his Court looks
at the ‘language of the statute as well as the design, object and policy in determining the
plain meaning of a statute.’” United States ex rel. Babalola v. Sharma, 746 F.3d 157, 161
(5th Cir. 2014) (quoting Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 448 (5th Cir. 1995)); see
also King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (“[A] statute is to be read as a whole,
since the meaning of statutory language, plain or not, depends on context.” (citation
omitted)).
       11 26 C.F.R. § 301.7811-1(b).

                                               32
    Case: 14-31164        Document: 00513200959          Page: 33     Date Filed: 09/21/2015



                                       No. 14-31164
however, issue a TAO that bars the IRS from pursuing certain actions
against a taxpayer. 12 Subdivision (d) responds to the reality that a taxpayer
can use a TAO to tie the enforcement arms of the IRS with a symmetry
achieving result – limitation does not run against the Government while the
TAO blocks access to enforcement.
       The legislative history of § 7811 supports this view of subdivision (d).
In the Conference Report adopting § 7811, the conferees provided only one
example of the type of statute of limitation that would be suspended by
subdivision (d): “the statute of limitation under sec. 6501 relating to the
assessment or collection of tax.” 13 The limited case law interpreting § 7811
has similarly implied that subdivision (d) suspends the statute of limitations
only for actions brought by the IRS. Indeed, the three cases cited by the
majority all group § 7811(d) along with “legal provisions scattered within the
IRC [that] provide for the suspension of the ten (10) year collection process.” 14
Other cases are in accord. 15 The majority also acknowledges that the only



       12  26 U.S.C. § 7811(b).
       13  2 H.R. Rep. No. 100-1104, at 215 (1988) (Conf. Rep.); see I.R.S. Litigation Bulletin
360 (Sept. 1990), 1990 WL 1086174 (“The legislative history identifies the limitations period
in section 6501 (assessment and collection of tax) as a statute subject to the suspension. Thus,
we believe that only those statutes of limitation that would continue to run to the detriment
of the Service when an application for a TAO is filed, are subject to the suspension.”).
        14 United States v. Carinos Ambulance Serv., Inc., 654 F. Supp. 2d 52, 59 (D.P.R. 2009);

see also In re Turner, 182 B.R. 317, 329 (Bankr. N.D. Ala. 1995) (“All suspension provisions
[including § 7811(d)] are designed and intended to avoid prejudice to the IRS’s ability to
collect during periods of time in which collection or assessment is prohibited by law [or
otherwise impeded].”), adhered to on reconsideration, 195 B.R. 476 (Bankr. N.D. Ala. 1996);
In re Gore, 182 B.R. 293, 304 (Bankr. N.D. Ala. 1995) (same).
        15 See, e.g., White v. Comm’r, 899 F. Supp. 767, 773 (D. Mass. 1995) (“An application

merely suspends the running of the period of limitations on collection.”); United States v.
Johnson, No. 2:12-CV-00097, 2013 WL 1403973, at *1 (S.D. Tex. Apr. 5, 2013) (“[The period
of limitation on assessment] is also suspended during the time that a taxpayer applies for
and obtains a decision on a Taxpayer Assistance Order.”); Next Generation Wireless, Ltd. v.
United States, No. 06-CV-838, 2008 WL 4115516 (S.D. Ohio Aug. 28, 2008) (considering only
whether the application for a TAO extended the period of limitation for filing a wrongful levy
claim under § 6532(c)(2) – and ignoring § 7811(d)); Scheafnocker v. Comm’r, 642 F.3d 428,
                                              33
    Case: 14-31164       Document: 00513200959          Page: 34     Date Filed: 09/21/2015



                                       No. 14-31164
case somewhat on point – Demes v. United States – concludes that a plaintiff
cannot use § 7811 to toll the statute of limitations. 16 There is no reason to
reach a different result here. 17
                                             B.
       Any suggestion that this analysis turns subdivision (d) into a trap for
the unwary is misplaced. IRS Form 911 – which a taxpayer must complete to
apply for TAS assistance – contains the following bolded note: “The signing
of this request allows the IRS by law to suspend any applicable statutory
periods of limitation relating to the assessment or collection of taxes.
However, it does not suspend any applicable periods for you to perform acts
related to assessment or collection, such as petitioning the Tax Court for
redetermination of a deficiency or requesting a Collection Due Process
hearing.” 18 Rothkamm provides no explanation for why she ignored this
warning. There is also no reason to suspect that the TAS review process is
designed to lull taxpayers into forfeiting their remedies against the IRS. The
statutory function of TAS is to “assist taxpayers in resolving problems with
the Internal Revenue Service.” 19 On its website, TAS bills itself as “your
voice at the IRS,” and informs visitors that “TAS is here to protect your rights
as a taxpayer, and help you with tax problems you can’t resolve on your
own.” 20 And twice a year, TAS submits reports to Congress full of scathing




441 (3d Cir. 2011) (per curiam) (Nygaard, J., concurring) (same), vacated on other grounds,
No. 08-2655, 2012 WL 1854183 (3d Cir. Apr. 24, 2012).
        16 52 Fed. Cl. 365, 373 (Fed. Cl. 2002).
        17 The majority also cites two treatises as support for its position. Yet neither does

anything more than beg the question by paraphrasing the language of § 7811(d).
        18 I.R.S. Form 911 (Feb. 2015), http://www.irs.gov/pub/irs-pdf/f911.pdf (emphasis

added).
        19 26 U.S.C. § 7803(c)(2)(A)(i).
        20    See      Taxpayer     Advoc.       Serv.: Your       Voice     at   the     IRS,
http://www.taxpayeradvocate.irs.gov (last visited Sept. 15, 2015).
                                             34
    Case: 14-31164        Document: 00513200959          Page: 35      Date Filed: 09/21/2015



                                        No. 14-31164
criticism of the IRS and suggestions for how the IRS could improve. 21 This is
an agency that seeks to help taxpayers and apprise them of their rights, not
trick them. 22
       Rothkamm also overstates the practical hardship of simultaneously
pursuing other remedies while seeking a TAO. Before taking the step of
filing suit in federal court, a taxpayer like Rothkamm may submit an
administrative request to the IRS for the return of any wrongfully levied
property. 23 This is not an onerous process; the taxpayer must submit a
written request with the same information that she likely has already
provided to TAS: (1) her name and address; (2) a description of the levied
property; (3) a description of her basis for claiming an interest in the levied
property; (4) the name and address of the person against whom the tax was
assessed; (5) the IRS office that issued the levy; and (6) the date of levy. 24
The compilation of this basic information – which again, has likely already
been compiled for TAS – is not the type of “hardship” that Congress created




       21   See Reports to Congress, Taxpayer Advoc. Serv.: Your Voice at the IRS,
http://www.taxpayeradvocate.irs.gov/reports (last visited Sept. 15, 2015); see also 26 U.S.C.
§ 7803(c)(2)(A)(ii)-(iv) (requiring TAS to “identify areas in which taxpayers have problems in
dealings with the Internal Revenue Service” and “propose changes to the administrative
practices of the Internal Revenue Service” and “identify potential legislative changes” to
mitigate these problems).
        22 Notably, Rothkamm has not argued that TAS did not inform her about the period

of limitation for filing a wrongful levy action. Cf., e.g., Scheafnocker v. Comm’r, 642 F.3d 428,
441 (3d Cir. 2011) (per curiam) (Nygaard, J., concurring) (“[I]n the Taxpayer Advocate’s
denial of Scheafnocker’s original request for assistance, there was notice of her right to appeal
to the District Court, along with a recitation of the statutes dictating the time-frame in which
this appeal must be filed.”), vacated on other grounds, No. 08-2655, 2012 WL 1854183 (3d
Cir. Apr. 24, 2012); Austin & Laurato, P.A. v. United States, No. 8:12-cv-1648-T-17-AEP, 2012
WL 5907066, at *2 (M.D. Fla. Nov. 26, 2012) (“[T]he Taxpayer Advocate Service denied
Plaintiffs’ requested assistance and directed them to file a lawsuit.”), aff’d, 539 F. App’x 957
(11th Cir. 2013).
        23 26 U.S.C. § 6532(c)(2).
        24 I.R.S. Publication 4528 (Nov. 2007), http://www.irs.gov/pub/irs-pdf/p4528.pdf; see

also 26 C.F.R. § 301.6343-2(b).
                                              35
    Case: 14-31164       Document: 00513200959          Page: 36     Date Filed: 09/21/2015



                                       No. 14-31164
TAS to assuage. 25 Moreover, Rothkamm did not even have to assume this
minimal burden in this case. After TAS closed her application for assistance
in October 2012, Rothkamm still had two months to file an administrative
request with the IRS before the period of limitation expired. 26 She has never
explained why she waited until May 2013 to seek relief.
                                             C.
       The majority’s efforts to save Rothkamm from her unexplained
oversight may ultimately have a serious impact on the IRS’s ability to collect
on unpaid tax liabilities. As the Supreme Court has recognized, “[t]he
demand for greater haste when a third party contests a levy is no accident.” 27
To the contrary, 26 U.S.C. § 7426(a)(1) has a short statute of limitations for
an “obvious” reason: once “someone else successfully claims property already
credited against the taxpayer’s tax liability, the United States must look to
other assets of the taxpayer to satisfy the taxpayer’s liability.” 28 If these
collateral disputes are not resolved swiftly, it is unlikely that there will be
any other assets to levy. 29 In EC Term of Years Trust, the Supreme Court
relied on this reasoning in holding that taxpayers may not use the general
tax-refund statute – which has a four-year statute of limitation – to challenge
a wrongful levy. 30 The Court concluded that a holding to the contrary would
have fatally undermined “the levy statute’s 9-month limitations period



       25 26 U.S.C. § 7811(a)(2).
       26 See Rothkamm v. United States, No. 3:13-cv-00589-BAJ-RLB, 2014 WL 4986884, at
*1 (M.D. La. Sept. 15, 2014).
       27 EC Term of Years Trust v. United States, 550 U.S. 429, 431-32 (2007).
       28 United Sand & Gravel Contractors, Inc. v. United States, 624 F.2d 733, 739 (5th Cir.

1980).
       29 See id.; see also Becton Dickinson & Co. v. Wolckenhauer, 215 F.3d 340, 351 (3d Cir.

2000) (“Were we to hold that section 6532(c) can be equitably tolled, we would delay the final
disposition of competing claims in cases like this one and would jeopardize, perhaps even
destroy, the IRS’s ability to impose a levy on other assets owned by a delinquent taxpayer.”).
       30 550 U.S. at 433-36.

                                             36
    Case: 14-31164       Document: 00513200959          Page: 37     Date Filed: 09/21/2015



                                       No. 14-31164
thought essential to the Government’s tax collection.” 31 Yet the majority’s
interpretation of § 7811 ignores these concerns – and effectively extends the
“9-month limitations period thought essential to the Government’s tax
collection.”
       The majority’s interpretation may also hurt more taxpayers than it
helps. “The tax code is an intricate web and demands clear rules so that it
may be administered with as little uncertainty as possible.” 32 The majority’s
holding, however, replaces the clarity of 26 U.S.C. § 6532(c) with a new
tolling rule that stops and starts the nine-month period of limitation at
indefinite dates. This new system may prove confusing to taxpayers looking
to calculate deadlines ahead of time. Taxpayers who wait several months to
file a request for TAS assistance, for instance, may have no warning until
TAS actually denies their claim that they need to move quickly to preserve
their rights. There is also little indication that the current system is not
working. If a taxpayer wants to challenge an IRS levy on the merits without
the full expense and effort of a federal suit, she can avail herself of what the
Supreme Court has called “an effective and inexpensive” remedy – an
administrative request for the return of the property. 33 The TAS review
process may be inexpensive and most effective in correcting clerical errors,
such as misdescriptions of property. It is not an avenue for resolution of legal
issues. Indeed, by law, TAS cannot “make a substantive determination of



       31 Id. at 434.
       32 Sidell v. Comm’r, 225 F.3d 103, 111 (1st Cir. 2000).
       33 United States v. Nat’l Bank of Commerce, 472 U.S. 713, 728 (1988); see also

Raymond v. United States, 983 F.2d 63, 66 (6th Cir. 1993) (agreeing that “the reason for
extending the limitations period in cases where an administrative claim is filed is to give the
Secretary ample opportunity to consider such a request on the merits before the matter comes
before the courts”); cf. Baddour, Inc. v. United States, 802 F.2d 801, 808 (5th Cir. 1986)
(concluding that the two available avenues for challenging a wrongful levy make it
unnecessary “[t]o open up an entirely new avenue of relief”).
                                              37
    Case: 14-31164        Document: 00513200959          Page: 38     Date Filed: 09/21/2015



                                       No. 14-31164
any tax liability.” It thus lacks the ability to help taxpayers like Rothkamm
who raise complex legal questions. 34 Perhaps this is why no court has found
such a tolling as has been created here and there are only one or two reported
cases in which a taxpayer has tried to invoke § 7811(d) as a basis for tolling –
even though TAOs have been available since 1989. 35 Our court should be
wary of disrupting Congress’s comprehensive and functional scheme for
resolving wrongful levy claims to save one taxpayer.
                                             III.
       But even if my construction of § 7811(d) is wrong, that does not change
the outcome in this case. “A statute of limitations requiring that a suit
against the Government be brought within a certain period of time” – like
§ 7811(d) – represents a waiver of sovereign immunity. 36 “When waiving the
Government’s sovereign immunity, Congress must speak unequivocally.” 37
This means that “[a]ny ambiguities in the statutory language are to be
construed in favor of immunity, so that the Government’s consent to be sued
is never enlarged beyond what a fair reading of the text requires. Ambiguity
exists if there is a plausible interpretation of the statute that would not
authorize money damages against the Government.” 38 Our court has held
that the plaintiff bears the burden of showing that no such plausible
interpretation exists. 39



       34 26 C.F.R. § 301.7811-1(b).
       35 Technical and Miscellaneous Revenue Act of 1988, Pub. L. No. 100-647, tit. VI,
§ 6230(d), 102 Stat. 3342, 3733-34.
       36 United States v. Dalm, 494 U.S. 596, 608 (1990); see also Block v. North Dakota, 461

U.S. 273, 287 (1983) (“When waiver legislation contains a statute of limitations, the
limitations provision constitutes a condition on the waiver of sovereign immunity.”).
       37 F.A.A. v. Cooper, 132 S. Ct. 1441, 1453 (2012).
       38 Id. at 1448 (citations omitted); see also Freeman v. United States, 556 F.3d 326, 334-

35 (5th Cir. 2009).
       39 See Freeman, 556 F.3d at 334; St. Tammany Parish ex rel. Davis v. Fed. Emergency

Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009).
                                              38
   Case: 14-31164       Document: 00513200959          Page: 39     Date Filed: 09/21/2015



                                      No. 14-31164
      Rothkamm cannot meet this burden. At the very least, there is a
“plausible interpretation” of § 7811(d) “that would not authorize money
damages against the Government.” The majority points to the Supreme
Court’s statement in Cooper that it has never required Congress to “state its
intent in any particular way” or “use magic words” to waive sovereign
immunity. 40 But this statement only iterates the unremarkable proposition
that Congress need not use the language “this statute waives the
Government’s sovereign immunity” to effectuate a waiver. This
acknowledgment did not dilute the insistence upon “an unmistakable
statutory expression of congressional intent to waive the Government’s
immunity” 41 – indeed the Supreme Court upheld the immunity of the
Government in Cooper on the basis of this very rule. 42
      Any ambiguity in § 7811(d) also creates another problem for
Rothkamm. Under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., we defer to an agency’s “permissible construction” of an
ambiguous statute. 43 That is, if an agency issues a regulation interpreting an
ambiguous provision of a statute, we defer to the agency’s regulation as long
as it represents a “permissible construction.” “An agency’s interpretation is
permissible if it is reasonable. The question of reasonableness is not whether
the agency’s interpretation is the only possible interpretation or whether it is
the most reasonable, merely whether it is reasonable vel non.” 44




      40 Cooper, 132 S. Ct. at 1448.
      41 Id.
      42 See id. at 1453.
      43 467 U.S. 837, 843 (1984).
      44 ConocoPhillips Co. v. U.S. E.P.A., 612 F.3d 822, 831 (5th Cir. 2010).

                                            39
    Case: 14-31164       Document: 00513200959          Page: 40     Date Filed: 09/21/2015



                                       No. 14-31164
       As noted by the majority, the IRS has issued a regulation that
addresses the interpretation of § 7811(d). 45 This regulation states that “[a]
taxpayer’s right to administrative or judicial review will not be diminished or
expanded in any way as a result of the taxpayer’s seeking assistance from
TAS.” 46 Though this provision does not use the word “tolling,” I disagree with
the majority that it does not concern the issue before our court. By its terms,
this provision prevents taxpayers from expanding their right to
administrative or judicial review – such as by extending the period of
limitation – through seeking TAS assistance. And contrary to the majority’s
suggestion, this correct statement of the law is not contradicted by the
examples provided in the subdivision directly addressing tolling. Though the
majority reproduces these examples as support for its position, it fails to
appreciate that all three concern the tolling of the IRS’s period of limitation
on collection – and not one applies subdivision (d) to a taxpayer’s period of
limitation. 47 Even assuming § 7811(d) were ambiguous, we ought defer to the
IRS’s reasonable construction of this provision. 48 I would do so.
                                             IV.
       For the reasons above, I respectfully dissent.


       45  The Supreme Court has rejected the argument that tax regulations are entitled to
less deference than other types of regulations. See Mayo Found. for Med. Educ. & Research
v. United States, 562 U.S. 44, 55-57 (2011).
        46 26 C.F.R. § 301.7811-1(b).
        47 Id. § 301.7811-1(e)(3); see I.R.S. Program Manager Tech. Adv. Mem. 2007-429, at 4

(Mar. 9, 2001) (opining that the majority’s expansive “interpretation [of § 7811(d)] would be
inconsistent with the statutory language and inconsistent with the examples provided in the
regulation”).
        48 The IRS has also adopted this construction of § 7811(d) in various publications that

are entitled to Skidmore deference. See I.R.S. Manual 13.1.14.3 (Oct. 31, 2004) (“A signed
Form 911 or written statement will suspend the running of limitations periods for assessment
or collection of tax under IRC §6501 and §6502. A Form 911 or written statement will not
however, suspend the period of limitations for filing refund claims.”); I.R.S. Litigation
Bulletin 360, supra; I.R.S. Form 911, supra; I.R.S. Program Manager Tech. Adv. Mem. 2007-
429, supra.
                                             40
