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                                              No. 14-2247                             FILED
                                        (Filed: October 6,2014)
                                                                                    OcT   - 6 2014
                                                                                  U.S. COURTOF
LOWELL G. FERGUSON, and                                                          FEDEFALCLAIMS
XIOMARA FERCUSON. pro se.                             Tax refund suit; RCFC l2(b)(1); Jurisdiction   -
                                                      tax jurisdiction is under 28 U.S.C. $ A92(a)(l)
                     Plaintiffs,                      not 28 U.S.C. $ l3a6(a)(l); Statute of
                                                      limitations in 28 U.S.C. g 6532(aXl);
                                                      Equitable tolling -RFI Holdings; Motion to
                                                      dismiss sranted.
THE LINITED STATES,

                      Defendant.



                                               OPINION


        Lowell G. Ferguson    and   Xiomara Ferguson, pro se, for plaintiffs.

      Paul George Galindo, Tax Division, United States Department of Justice, with whom
was Assistant Attomey General Kathryn Keneally, for defendant.

ALLEGRA, Judge:

        In this tax refund suit, plaintiffs, Lowell G. Ferguson and Xiomara Ferguson, seek to
recover Social Security and Medicare taxes. see26u.s.c. $$ 3101-312s (2012). Defendant
seeks to dismiss the case for lack ofjurisdiction under RCFC l2(bXl). For the reasons that
follow, the court GRANTS defendant's motion.

        In 2005, Delta Airlines filed for bankruptcy under Chapter I I of the United States
Bankruptcy code (11 u.s.c $$ I l0l-1174).' As a result of the bankruptcy, a porrion ofrhe
company's assets were distributed to retired employees, including plaintiff Lowell Ferguson.
Delta Airlines issued Mr. Ferguson a wage and tax statement, Form w-2, for the 2007 tax year,
indicating that $6,045.00 was withheld for Social Security tax and $ 1,454.16 was withheld for
Medicare tax.



         ' The lacts cited above are largely drawn from plaintiffs' complaint and, for purpose of
this motion, are assumed to be correct. see Bell Att. Corp. v. Twombl/, 550 u.s. s44 (2007).
Other facts recited herein are jurisdictional facts that derive from documents filed by defendant
with its motion. See RCFC l2(d).
         On January 22,2011, Mr. Ferguson and his wife filed a Form 843 claim for refund with
the Intemal Revenue Service (lRS) to recover $7,499, the amount withheld for Social Security
 and Medicare taxes. On April 4, 2011, the IRS sent plaintiffs a notice of the disallowance of
their refund claim through certified mail. The notice instructed them that they could appeal the
decision to the IRS Appeals Office or, altematively, file suit in a U.S. district court with
jurisdiction or in the U.S. Court of Federal Claims. The notice stated that the suit must be filed
"within 2 years from the date ofthis letter," and fuither explained "[i]fyou decide to appeal our
decision first, the 2-year period still begins from the date ofthis letter."

        On April 15, 2011, plaintiffs appealed the decision to the IRS Appeals Office. On May
21,2012, the IRS Appeals Office mailed plaintiffs a letter, stating that it had sustained the
disallowance of plaintiffs' claim for refund. The letter further advised that plaintiffs could file
suit challenging the disallowance in a U.S. district court with jurisdiction or the U.S. Court of
Federal Claims "within 2 years from the mailing date of this letter."

         OnMarch24,2014, plaintiffs filed a complaint in this court seeking to recover
$7,499.00, plus filing fees and accountant's fees. On May 22,2014, defendant filed a motion to
dismiss the complaint for lack ofjurisdiction pursuant to RCFC 12(bX1). On June 23,2014,
plaintiffs filed their response. On July 8,2014, defendant filed a reply to plaintiffs' response to
the motion to dismiss, requesting that the motion to dismiss be viewed alternatively as a motion
to dismiss for failure to state a claim pursuant to RCFC l2(bX6). On October 3, 2014, the court
permitted plaintiffs to file a suneply.

        The Tucker Act, 28 U.S. C. $ I a9l (a)( I ), grants this court j urisdiction over "any claim
against the United States founded either upon the Constitution, or any Act ofCongress or any
regulation ofan executive department," including tax refund actions authorizedby 26 U.S.C. $
7 422(a). See Kaplan v. UnitedStates,113 Fed. CI.84,86 (2013), vacated on other grounds,         ll5
Fed. Cl. 491 (2014); Hinck v. United Stares,64 Fed. Cl. 7 t, 7 6 (2005), aff'd, 446 F.3d 1307 (Fed.
Cir. 2006), aff d, 550 U.S. 501 (2007).' Such tax refund actions cannot be brought, in any courr,
"until a claim for refund or credit has been duly hled" with the IRS. 26 U.S.C. g 7 422(a); United
Statesv. Dalm,494 U.S.596,601-02(1990). An administrative refund claim must be filed


      'Thiscourt'sjurisdictionoverrefundsuitsdoes,?ot-NOT-derivefrom28U.S.C.$
l3a6(a)(l). See Rosemanv. United States,2013 WL 151716,at *1 n.2 (Fed. Cl. Jan.3,2013).
The latter provision provides jurisdiction only for district court tax refund suits. See Hinck,64
Fed. Cl. at 74-76; see also New England Mut. Life Ins. Co. v. United States,52F.2d 1006, 1008
(Ct. Cl. l93l); M. Carr Ferguson, "Jurisdictional Problems in Tax Controversies," 48 Iowa L.
Rev. 312, 346 n.175 (1962-1963) ("The jurisdiction ofthe Courr of Claims in tax cases is
conferred by 28 U.S.C. $ 1491 . . . . Although the Court of Claims is mentioned in 28 U.S.C. $
1346 . . . , it is only mentioned in passing by this younger statutory provision, reference being
made to the jurisdiction already extended under the other sections."); see generally, Usibelli
Coal Mine v. United States,54 Fed. Cl. 373,375-76 (2002), rev'd, on other grounds, 311 Fed.
Appx. 350 (Fed. Cir. 2008).
within two years from the date a tax is paid or three years from the time the retum was filed,
whicheverislater.26U.S.C.$6511(a);seeUnitedStatesv.Dalm,494U.S.596,602(1990);
Boeri v. United States,724 F.3d 1367, 1369 (Fed. Cir.), cert. denied, 134 S. Ct. 801 (2013).

        Section 6532(a)(l) of Title 26 provides the statute of limitations for such suits. It
provides:

        [n]o suit or proceeding under section 7 422(ai) for the recovery ofany intemal
        revenue tax, penalty, or other sum, shall be begun before the expiration of6
        months from the date of filing the claim required under such section . . . nor after
        the expiration of2 years from the date of mailing by certified mail or registered
        mail by the Secretary to the taxpayer of a notice of the disallowance of the part of
        the claim to which the suit or proceeding relates.

26 U.S.C. $ 6532(a)(l); see also Dalm,494 U.S. ar 601-02; Hamzikv. United States,64 Fed. Cl.
766,766 (2005). Additionally, subsection (a)(4) provides that:

        [a]ny consideration, reconsideration, or action by the Secretary with respect to
        such claim following the mailing of a notice by certified mail or registered mail   of
        disallowance shall not operate to extend the period within which suit may be
        begun.

26U.S.C.$6532(a)(4); Cadrechav.(lnitedStates,l04Fed. C|.296,303 (2012). Thesote
exception to this rule is found in subsection (a)(2) ofsection 6532, which states that "[t]he 2-year
period . . . shall be extended for such period as may be agreed upon in writing between the
taxpayer and the Secretary." 26 u.s.c. g 6532(a)(2); see Cadrecha,104 Fed. cl. at304., Jackson
v. United States, 100 Fed. Cl. 34, 45 (2011).

         Plaintiffs, however, assert that the refund claim in question is timely under the doctrrne
ofequitable estoppel, citing, for this purpose, the language in the aforementioned IRS letter of
May 21,2012. ln United States v. Brockamp,519 U.S. 34'j,349 (1997), the Supreme Court held
that the sratute of limitations provision in 26 u.s.c. $ 6511 was not subject to equitable tolling.
Shortly thereafter, the Federal Circuit, in RHI Holdings, Inc. v. United States, 142F.3d1459,
1462 (Fed. Cir. 1998), held that the statute of limitations provision in section 6532 is likewrse
not subj ect to equitable tolling. A number of opinions, including those of this court, have
followed suit. see MarcinkowslE v. united states,206 F.3d 1419, l42l-22 (Fed. cir. 2000);
Palm v. United Stqtes,2014 WL 2536485, at *4-5 (Fed. Cl. June 5,2014); Jactcson v. United
States,100 Fed. Cl. 34, 44-45 (2011); Brach v. United States,98 Fed. Cl. 60,67 (2011), aff'd on
other grounds,443 Fed. Appx. 543 (2011); Estate of orlando v. united states,94 Fed. cl. 2g6,
292-93 (2010).' These cases make clear that the statute of limitation in section 6532 may not be


       3 See
             also Garrett v. Il.S. Internal Revenue Serv.,8 Fed. Appx. 67g,6g0(9thCir.200l);
Brewer v. United States,390 F. Supp. 2d 1378,1381 (S.D. Ga. 2005); see generally Becton
Dickinson & Co. v. Wolckenhauer,2l5 F.3d 340,348-49 (3d Cir.2000), cert. denied,52l U.S.

                                               -3-
tolled for any reason, including plaintiffs' assertions with respect to statements previously made
by IRS officials.

         Accordingly, based on the foregoing, the statute of limitations in section 6532(a)(l) is not
tolled here and is fully applicable to plaintiffs' complaint. Plaintiffs' complaint, therefore, is
untimely. Based on the foregoing, under RCFC l2(b)( I ), the court lacks jurisdiction over
plaintifTs' complaint. The Clerk is hereby ordered to dismiss the complaint.

        IT IS SO ORDERED.




l07l   (2001); Danoffv. .United States,324 F. Supp. 2d 1086, 1099-1100 (C.D. Cal. 2004), aff'd,
135 Fed.  Appx. 950 (9'" Cir.2005).


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