

                    [NOT FOR PUBLICATION]

                United States Court of Appeals                            United States Court of Appeals
                    for the First Circuit                                for the First Circuit

                                         

No. 97-1729

                       GEORGE W. DAVID,

                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Michael A. Ponsor, U.S. District Judge]                                                                
       [Hon. Kenneth P. Neiman, U.S. Magistrate Judge]                                                                 

                                         

                            Before

                     Selya, Circuit Judge,                                                     
                Aldrich, Senior Circuit Judge,                                                         
                  and Boudin, Circuit Judge.                                                       

                                         

Paul M.  Stein with whom Malkasian,  Hicinbothem &amp; Mollica was  on                                                                      
brief for appellant.
Bridget M. Rowan with  whom Gilbert S.  Rothenberg, Attorneys, Tax                                                              
Division,  Department  of  Justice,   Loretta  C.  Argrett,  Assistant                                                                  
Attorney General, and  Donald K. Stearn, United  States Attorney, were                                               
on brief for appellee.

                                         

                      December 29, 1997
                                         

          ALDRICH, Senior Circuit  Judge.  In this  action to                                                    

recover  funds  advanced  to  the  Internal  Revenue  Service

("IRS")  by   George  W.   David,  plaintiff-appellant,   the

magistrate judge's opinion, confirmed by the district  court,

acceptably  reduced the dispute to what  was the character of

David's  remittance, whether a tax  payment or a deposit, and

whether the  equities overcame a decision  otherwise favoring

the government.  On summary judgment, it found the remittance

a payment,  which meant that  the refund claim had  been made

too late, and denied any equitable extension.  We affirm.

          Shortly before April 15, 1990, when his 1989 income

tax return,  and payment, were to fall  due, David's business

records were taken into federal  custody pursuant to a search

warrant.   Without them he  could not prepare his  return or,

allegedly, even reasonably estimate his  tax.  On April 15 he

filed  a request  on Form  4868 for  an automatic  four month

extension of time to file his return.  With  this he enclosed

a  check for  $12,000, which  the IRS  negotiated.   He later

obtained a second extension to October  15, 1990.  He did not

file his 1989 return, however, until February 24, 1994.

          On the return when filed David noted the $12,000 as

an "Amount paid with Form 4868."  With credits, it turned out

that all that  had been due was $749,  and the return claimed

refund of the  $11,251 balance.  The refund  claim was timely

under I.R.C.   6511(a).  Cf.  Oropallo v. United States,  994                                                                   

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F.2d 25,  27 (1st  Cir. 1993) (per  curiam) (assuming  that a

late return is  a "return" within the  meaning of   6511(a)),

cert.  denied, 510  U.S. 1050  (1994).   Unhappily,  however,                         

  6511(b)(2)(A) limited the amount of credit or refund to the

amount  of tax  paid within  the  three years,  plus the  six

months extension preceding the refund claim.  Accordingly, as

a claim  for refund of a tax payment  made on April 15, 1990,

David's return was some four months too late.  It was not too

late if the remittance had simply been a deposit.

          The IRS stood on its position of payment, and David

brought  this  suit.   In  his  complaint,  doubtless because

executed pro se, he asserted that he was suing for an  income

tax refund  of $11,251,  which, inescapably,  was the  unused

portion  of  his  $12,000 remittance.    Eventually,  when he

obtained counsel who examined the law, David realized that he

had intended  the $12,000  to be a  general deposit,  not the

estimated  tax  payment  (larger  for  safety),  required  to

accompany his Form 4868.

          Concededly,  whether a remittance  to the IRS  is a

payment, or is a general  deposit whose recovery would not be

statutorily  barred,   may  be   a  matter   of  intent   and

circumstance.  See  generally Rosenman v. United  States, 323                                                                    

U.S. 658,  662 (1945); Moran  v. United States, 63  F.3d 663,                                                          

668-69 (7th Cir. 1995); Blatt  v. United States, 34 F.3d 252,                                                           

254-55 (4th Cir. 1994).  But even if the IRS is  incorrect in

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claiming  that the circumstances  shown warrant finding  of a

tax payment as matter of law under I.R.C.   6513(b)(1), which

we do not  decide, but cf. Gabelman v.  Commissioner, 86 F.3d                                                                

609,  612 (6th  Cir.  1996) (holding  remittance accompanying

Form  4868  to  be  a  payment  as  a  matter  of  law  under

  6513(b)(1));  Weigand v. United States, 760 F.2d 1072, 1073                                                    

(10th Cir.  1985) (same), it  is only natural to  assume that

the  $12,000 check  was the  payment that  the form  said was

required in the  absence of  any assertion  to the  contrary.

David points to  no objective manifestation of  his "deposit"

intention at the time of remittance.1  To this we add his now

counsel's  inability, at  oral argument,  even  to suggest  a

purpose for intending a deposit.

          We  cannot decide in David's favor.  Undoubtedly he

had a tax liability on April 15, 1990.  See I.R.C.   6151(a);                                                       

Manning v. Seeley  Tube &amp; Box Co., 338 U.S.  561, 565 (1950).                                             

His extension to  file did not postpone this  liability.  See                                                                         

26  C.F.R.    1.6081-1(a)  and 1.6081-4(b).    His Form  4868

remittance, required to be an estimate of this liability, was

made in  recognition thereof.   With no further  showing, the

presumed  intention  was  to  discharge  the  liability  that

                                                    

1.  Neither party was able to produce David's Form 4868.  His
oft-repeated   characterization   of    his   remittance   as
"arbitrary" in calculation  is insufficient  in this  regard.
Similarly  insufficient are his  contentions as to  the IRS's
accounting  practices,   which  reveal  nothing   of  David's
supposed deposit intent.

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renders the remittance a payment.  Cf. Moran, 63 F.3d at 668;                                                        

Blatt, 34  F.3d at 255-57;  Ewing v. United States,  914 F.2d                                                              

499, 504 (4th Cir. 1990),  cert. denied, 500 U.S. 905 (1991);                                                   

Ameel v. United States, 426  F.2d 1270, 1273 (6th Cir. 1970).                                  

Accordingly,  David's  refund   claim  fails  by   reason  of

  6511(b)(2)(A).

          David's  equitable   claim,  failing   his  deposit

argument,  is based  on the  following facts.   His  time for

filing a claim for refund of a  tax payment made on April 15,

1990 would expire, given the six months extension allowed for

filing the return  and claim, on October  15, 1993.  On  that

date, however, he was in  federal custody.  The total picture

is  that the  government maintained  its  custody of  David's

needed records  from April 4,  1990 until February  21, 1992.

It  then,  pursuant to  an  agreement between  David  and his

former  employer, released them  to a third  party for making

copies;  neither principal party  to have access  without the

presence of the  other until the copying was  completed.  For

some  undisclosed reason,  David  did  not  finally  get  his

records until December 31, 1992.

          Surely  there could be  no per diem  charge against

the government for the time that the records were lawfully in

its custody early on; the equity issue would turn on how much

time was  left, obviously there  was enough.  Nor  should the

government be  charged for the  possible difficulties imposed

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by David's  voluntary surrender  thereafter for  copying.   A

more serious matter,  following a plea (to  unrelated federal

counts) on December 10, 1992, David himself was in government

custody; January 8, 1993 to October 4, 1993, in prison; then,

to January 5, 1994, in  a halfway house.  Reasonably promptly

thereafter, on  February 24,  1994, he  filed his return  and

refund claim.

          In United  States v. Brockamp, 117 S. Ct. 849, 852-                                                   

53  (1997),  the  Court,  seemingly  flatly,  ruled  out  all

equitable claims that  would supplement the statutorily-given

reasons for tolling  or extending the time  for filing claims

for  refund  of   tax  payments.     We  might  consider   it

particularly rough for  the government to lock  up a taxpayer

before the time for a claim of refund  would expire, and then

tell him it was  too late.  At the same  time, we must adhere

to the Court's recognition that "Congress decided  to pay the

price  of   occasional   unfairness   in   individual   cases

(penalizing a taxpayer whose claim is unavoidably delayed) in

order  to maintain a  more workable tax  enforcement system."

Id. at 852; cf. Oropallo,  994 F.2d at 28-31.  We do not want                                    

to  recognize   a  special  exception  for   taxpayers  whose

difficulties are due to their criminal convictions.

          Affirmed.                               

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