                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                            MAR 06 2013

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

WARREN AND BARBARA PARCHAN,                      No. 11-55848

               Plaintiffs - Appellants,          D.C. No. 8:10-cv-01225-JST-
                                                 MLG
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM*

               Defendant - Appellee.


                     Appeal from the United States District Court
                         for the Central District of California
                    Josephine S. Tucker, District Judge, Presiding

                       Argued and Submitted January 7, 2013
                               Pasadena, California

Before:        W. FLETCHER and RAWLINSON, Circuit Judges, and KORMAN**,
               Senior District Judge.

       Warren and Barbara Parchan appeal the dismissal of their claims against the

United States for a partial tax refund for the 2001 and 2002 tax years. With regard to


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
                                          1
the 2001 tax year, the district court properly found that the Parchans had failed to

satisfy the statutes of limitation applicable to their refund claim and eventual lawsuit.

Because refund lawsuits against the government must fall within the narrow statutory

waiver of sovereign immunity, the statute of limitations applicable to these suits, 26

U.S.C. § 6532(a), is jurisdictional. Yuen v. United States, 825 F.2d 244, 245 (9th Cir.

1987). Thus, the district court properly dismissed the Parchans’ 2001 claims for lack

of jurisdiction.

      Nor are the Parchans entitled to take advantage of the mitigation provisions in

the Internal Revenue Code to circumvent the statute of limitations. As the district

court explained, the Parchans did not suffer a “double disallowance” within the

meaning of 26 U.S.C. § 1312(4), because they did claim a deduction for the legal fees

at issue in a return that was accepted by the IRS. The fact that the IRS rejected as

untimely a later return, which claimed the deduction under a different statutory

provision, does not qualify the Parchans for relief under the statute. Although the

Parchans may be unhappy with their original choice of deduction, “[t]he mitigation

provisions do not constitute a general equitable exception to the limitations period.”

Schwartz v. United States, 67 F.3d 838, 840 (9th Cir. 1995).

      As to the 2002 tax year, the Parchans previously elected to sue for a

determination of their liability for that year in the Tax Court. By so doing they lost


                                           2
their right to litigate their tax claims in the district court. 26 U.S.C. § 7422(e); Flora

v. United States, 362 U.S. 145, 166 (1960). Moreover, the Parchans entered into a

stipulated agreement with the IRS in that case establishing their liability for the

amount ultimately paid; they are not entitled to recover a tax they admittedly owe

despite the IRS’s illegal method of assessment. Van Antwerp v. United States, 92 F.2d

871, 873 (9th Cir. 1937); see also Powelson v. United States, 979 F.2d 141, 145 (9th

Cir. 1992).



AFFIRMED.




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