                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                          

No. 92-1983 

                     CHARLES J. OROPALLO,

                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

    [Hon. Martin F. Loughlin, Senior U.S. District Judge]
                                                        

                                         

                            Before

                     Breyer, Chief Judge,
                                        
              Torruella and Cyr, Circuit Judges.
                                               

                                         

Charles J. Oropallo on brief pro se.
                   
Jeffrey  R.  Howard, United  States  Attorney,  James  A.  Bruton,
                                                                 
Acting  Assistant   Attorney  General,  Gary  R.   Allen,  Gilbert  S.
                                                                  
Rothenberg and Roger  E. Cole, Attorneys, Tax Division,  Department of
                         
Justice, on brief for appellees.

                                         

                         May 24, 1993
                                         

          Per Curiam.   The district court  dismissed Charles
                    

Oropallo's  suit for a tax refund as untimely under 26 U.S.C.

  6511(a).  We affirm.

                    I.  Background
                                  

          Charles  Oropallo worked  for the  Raytheon Service

Company  during  the 1983  calendar year.    In 1985,  he was

incarcerated.   Four years later the IRS informed him that he

had  not filed  any tax  returns since  1982.   Oropallo then

obtained his W-2 form  from Raytheon.  When he filled out his

1983 tax return, he discovered that he had overpaid his taxes

by  approximately $698.   He  filed his  return on  March 19,

1990, claiming that amount as a refund.  On May 23, 1990, the

IRS  mailed him  a notice  disallowing his  claim, explaining

that it  could not "refund or  credit tax that  was paid more

than 3  years before the filing  of the claim  . . . ."   The

notice also told Oropallo  that he could sue to  recover "any

tax . . . or other amounts for which this disallowance notice

is issued" by filing suit in the appropriate federal district

court  (or the U.S. Claims  Court) within two  years from the

mailing date of the notice.  

          Oropallo filed  suit in  the district  court within

the two-year period described by the disallowance notice.  He

alleged   that   "extremely   mitigating    and   extenuating

circumstances"  explained his  failure to  file his  1983 tax

return  on  time.   First, he  had  believed that  a six-year

limitations period applied.   Second, in  March 1983, he  had

suffered carbon monoxide poisoning which  left him "extremely

incapacitated and unable to function competently  for several

years" and, for that reason, he had been "completely unaware"

that he  had not filed his  1983 tax return "and  had in fact

believed he had  timely filed said return."   Furthermore, he

had been in prison since 1985, prison authorities had impeded

his  legal efforts  on his  own behalf,  and although  he had

informed  the  U.S.  Post  Office of  address  changes  while

incarcerated, he  had not  received notice  that  he had  not

filed the 1983 return until mid-1989.  

          Without  waiting  for  the  government's  brief,  a

magistrate-judge recommended dismissing Oropallo's complaint,

finding that the suit was untimely under 26 U.S.C.    7422(a)

and  6511(a) and  that  the court  therefore  had no  subject

matter  jurisdiction   over  the  suit  under   28  U.S.C.   

1346(a)(1).    The   magistrate-judge  also  concluded   that

Oropallo's incarceration had not affected his ability to file

a  timely tax  return, since,  while incarcerated, he  had in

fact  filed the return in question.  Oropallo objected to the

magistrate-judge's  recommendations.    He  noted   that  the

magistrate-judge  had  not   considered  his  alleged  carbon

monoxide poisoning before concluding that his late filing was

not excused, and he  offered as an additional reason  for his

delay  the  fact  that his  ex-wife  had  taken  his tax  and

financial  records  in early  1984  and moved  to  an unknown

                             -4-
                              4

address.   Oropallo also argued that the IRS had consented to

his suit because the disallowance notice stated that he could

bring  suit within  two years  from the  mailing date  of the

letter and he had  done so.  The district  court subsequently

accepted the magistrate-judge's recommendation  and dismissed

Oropallo's suit.

          On appeal,  Oropallo alleges that the  dismissal of

his suit  violated his  constitutional rights under  both the

United States  and New Hampshire Constitutions.  He says that

dismissal of his  suit deprived him  of his property  without

due process of law and  of his right to access to  the courts

to seek redress  for his  grievances.  He  also claims  that,

given   the  circumstances   he  alleges,   the  statute   of

limitations   should  have   been  tolled.     Applying   the

limitations period to him, he argues, also violated his equal

protection rights under the Constitution since, as he claims,

the  IRS  can "reach  back" farther  in  time to  make claims

against  taxpayers  than taxpayers  can  to recover  refunds.

Finally,  Oropallo  asserts  that  the language  of  the  IRS

disallowance notice, stating that  he could bring suit within

two  years of  the mailing  date of  the notice,  constituted

consent to his suit and waived any limitations bar.     W   e

affirm for the reasons described below.

                             -5-
                              5

                         II.  Discussion
                                        

          Since  the  statute  of limitations  and  equitable

tolling issues are at the heart of this case, we address them

first. 

          A.  Equitable Tolling of Section 6511(a) and (b)
                                                          

          As the district court noted, 28 U.S.C.   1346(a)(1)

gives federal district courts jurisdiction over suits against

the United  States "for the recovery  of any internal-revenue

tax alleged to have been erroneously or illegally assessed or

collected."  Likewise, the  court correctly observed that the

jurisdictional grant  in section  1346(a)(1) must be  read to

incorporate  the requirements  of  26 U.S.C.     7422(a)  and

6511(a).   See United States  v. Dalm, 494  U.S. 596, 601-02,
                                     

608-10 (1990).  

          Section  7422(a) provides  that no  suit for  a tax

refund may be maintained unless "a claim for refund or credit

has been  duly filed  with the  Secretary,  according to  the

provisions  of law in that regard, and the regulations of the

Secretary established in pursuance thereof."  Section 6511(a)

states that a refund claim must be filed "within 3 years from

the time  the return was filed  or 2 years from  the time the

tax was paid, whichever of such periods expires the later, or

if no return was filed  by the taxpayer, within 2  years from

the   time  the  tax  was   paid."    Thus,  section  6511(a)

                             -6-
                              6

distinguishes between taxpayers  who file  returns and  those

who do  not.  Taxpayers who  file returns have  the longer of

three  years from  the time  they filed  their return  or two

years from the time they paid their taxes to file a claim for

refund,  whereas taxpayers  who have  not filed  returns have

only two years  from the time they  paid their taxes to  file

their refund claims.   A  refund suit must  have been  timely

filed under one of the limitations periods in section 6511(a)

for the  district court to obtain jurisdiction over the suit.

Dalm, 494 U.S. at 609.  
    

          The  district  court did  not  explain clearly  how

Oropallo's  claim was  untimely under  section 6511(a).   Its

opinion  contained language  which would  support either  the

conclusion  that it  had applied  the three-year  limitations

period for  taxpayers filing returns  or that it  had applied

the shorter two-year limitations period for taxpayers who did

not  file returns.   The  government urges  us to  affirm the

district   court's  implicit   holding   that  the   two-year

limitations period for nonfiling  taxpayers applies and  that

Oropallo's  late  return is  not  a  "return" which  triggers

application of  the three-year limitations period.   Although

it acknowledges that  there is  a split in  authority on  the

question  whether  a return  filed after  its  due date  is a

"return"  within the  meaning  of section  6511(a),  compare,
                                                             

e.g.,  Musser v. Commissioner, 92-1  USTC   50,245 (D. Alaska
                             

                             -7-
                              7

1991) (the two-year limitations period measured from the time

the tax  was  paid is  applicable  to taxpayers  filing  late

returns),  with Mills v. United States, 805 F. Supp. 448, 450
                                      

(E.D. Tex. 1992) (the three-year limitations period beginning

when the return  is filed applies to a taxpayer filing a late

return), the government argues  that a finding that taxpayers

filing late returns have  only two years from the  time their

taxes are  paid  to file  refund claims  better reflects  the

statutory language.  

          We need not resolve  this question in light  of our

determination  on the  tolling issue.    For purposes  of our

present  analysis,  therefore,  we  assume for  the  sake  of

argument  that  the cases  holding that  a  late return  is a

"return" within  the meaning of section  6511(a) are correct.

Accordingly, we also assume that, if Oropallo filed his claim

for a refund  within three  years of his  return, his  refund

claim  would be timely.   Under 26 C.F.R.    301.6402-3(a), a

return which claims a  refund may be considered a  "claim for

refund" under section 6511(a).   Oropallo's return, which was

filed  on March 19, 1990,  claimed a refund.   Therefore, the

claim, having been filed on the same day as his return, would

obviously have been filed within three years of the filing of

the return and so was timely.  

          This assumption, however, does not mean victory for

Oropallo.    As the  government  says, section  6511(b)(2)(A)

                             -8-
                              8

places a cap  on recovery  of a refund  which, in  Oropallo's

case,  prevents recovery of any  taxes paid for  the 1983 tax

year.  Specifically, section 6511(b)(2)(A) states that,  with

respect to  a claim  filed  during the  three-year period  in

section  6511(a), the amount of the refund is limited to "the

portion  of  the  tax  paid within  the  period,  immediately

preceding the filing of the claim, equal to 3 years plus  the

period of  any  extension of  time  for filing  the  return."

Since  Oropallo filed  his claim  on March  19, 1990,  he may

recover only taxes paid in the preceding three years -- i.e.,

any  taxes  paid  on  or  after March  19,  1987.    (As  the

government notes,  Oropallo has not claimed  that he received

any extension  of time for filing his 1983 return.)  Under 26

U.S.C.    6513(b)(1),  Oropallo's taxes  were deemed  paid on

April 15, 1984,  well before  the cut-off date  of March  19,

1987.  Therefore,  he may  not recover any  portion of  those

taxes.  

          Section  6511(b)(2)(A)  explicitly  forecloses  any

refund  for  taxes  not  paid within  the  three-year  period

preceding  the  date  the  claim was  filed.1    Essentially,

                    

1.  Thus, where the  taxes sought to be  recovered are deemed
paid as  of the date the return was due (and no extension for
filing the return was granted), a return such as  Oropallo's,
which  itself is the refund claim, must be filed within three
years of  its due date for the taxpayer to be able to recover
any  of the  taxes  paid.    Basically,  for  a  taxpayer  in
Oropallo's  situation,  section  6511(a) and  (b)(2)(A)  work
together  with  section  6513(b)(1)  to  impose  a three-year
statute of  limitations on  refund claims, measured  from the

                             -9-
                              9

therefore,  it establishes  an additional  limitations period

separate from the three-year period in section 6511(a).  See,
                                                             

e.g., Mills v.  United States,  805 F. Supp.  448, 450  (E.D.
                             

Tex.  1992) (for  a  taxpayer who  has  filed a  return,  the

provisions of  section 6511(a)  and (b)(2)(A) establish  "two

limitations  hurdles" --  (1)  a refund  claim must  be filed

within three years after the tax return is filed, and (2) the

amounts sought to be recovered  must actually have been  paid

in the  three-year period preceding the filing of the claim).

That additional  limitations period effectively  bars some of

the refund claims which  would be unquestionably timely under

section 6511(a).   See, e.g.,  Rainey v. United  States, 82-2
                                                       

USTC    9442 (N.D. Ala.  1982) (the taxpayer's  claim was not

untimely  under  section 6511(a),  but  it  was denied  under

section  6511(b)(2)(A) because  the taxes  had not  been paid

within  the prescribed  period before  the claim  was filed);

McGregor  v. United States, 80-2  USTC   9647  (Ct. Cl. 1980)
                          

(same).    Accordingly,  unless  the  additional  limitations

period imposed  by section 6511(b)(2)(A) is equitably tolled,

Oropallo's action should be dismissed.  

                    

original due date of  the tax return.   See Tallon v.  United
                                                             
States, 84-2  USTC   9926 (C.D. Ill.  1984) (after discussing
      
the effect  of sections  6511(b)(2)(A) and 6513(b)(1)  on the
taxpayers'  timely refund  claim, which  was made  in a  late
return, the  court concluded  that "the Plaintiffs  have been
barred from recovering their refund by failure to  file their
returns within three years of the time they were due"). 

                             -10-
                              10

          2.  Equitable Tolling
                               

          Oropallo argues that the limitations  period should

be  tolled   "[i]n  the  interests  of   justice"  given  the

"extremely mitigating and  extenuating circumstances" of  his

case.    In  our  opinion,  only  Oropallo's  alleged  carbon

monoxide poisoning could  qualify for that characterization.2

The  government  interprets  Oropallo's  argument  to  be  an

attempt to invoke either the mitigation provisions of the tax

code,  26 U.S.C.      1311-14, or  the  judicial doctrine  of

equitable recoupment.   It correctly points  out that neither

the  mitigation  provisions  nor  the   equitable  recoupment

doctrine apply.   In view  of Oropallo's status  as a  pro se
                                                             

petitioner,  however, we  think we have  an obligation  to go

beyond the government's  brief and to take  account of recent

                    

2.  We assume that carbon monoxide  poisoning, which Oropallo
alleges  not only  incapacitated him  for several  years, but
also deprived  him of  his ability  to know that  he had  not
filed  a  1983  tax  return,  would  be analogous  to  mental
incapacity and  thus could be a ground  for equitable tolling
if  Oropallo  could  show  that  his  alleged  poisoning  had
actually prevented him from filing his 1983 return on time or
from remembering earlier than  1989 that he had not  done so.
See  Lopez v.  Citibank, N.A.,  808 F.2d  905, 907  (1st Cir.
                             
1987)  (assuming, in  a  suit between  private parties,  that
mental  illness   "might  sometimes   toll  the   statute  of
limitations," the court concluded that it did not do so where
the plaintiff was represented by counsel at the relevant time
and  so was not actually prevented from timely filing suit by
his mental illness).  The other grounds for equitable tolling
which  Oropallo alleges do not  appear to have  caused him to
delay filing his return, either  in 1983 or in 1989 after  he
learned that his  1983 return had  not been filed.   For that
reason, we  do not see how they could be found to excuse that
delay.  

                             -11-
                              11

developments  in  the  law which  are  not  discussed by  the

government.

          Before 1990,  Oropallo would have had  no basis for

claiming that the limitations  periods in section 6511 should

be equitably  tolled.  Courts traditionally  have declined to

apply equitable  principles to  toll statutes  of limitations

against  the United  States, on  the theory  that  the United

States could  be sued  only by  virtue of  its waiver of  its

sovereign  immunity and that the terms of any such waiver had

to be strictly construed.   Irwin v. Veterans Administration,
                                                            

498  U.S. 89,  111  S. Ct.  453,  458-59 (1990)  (White,  J.,

concurring); see, e.g,  United States v. Dalm,  494 U.S. 596,
                                             

608 (1990).3  Therefore,  except in clearly unique situations

which do not  apply here, the limitations  periods in section

6511 have not  been equitably  tolled.  See,  e.g., Ellis  v.
                                                         

United States, 82-1 USTC    9214 (Ct. Cl. 1982)  ("[t]here is
             

nothing in any of the[] provisions [relating  to tax refunds]

that permits an exception to th[e] time limitation to be made

                    

3.  In addition, tax laws have been viewed as  technical laws
which are not subject  to general principles of equity.   See
                                                             
Lewyt Corporation v. Commissioner,  349 U.S. 237, 249 (1955);
                                 
Ewing  v. United States, 914  F.2d 499, 501  (4th Cir. 1990),
                       
cert. denied, 111 S. Ct.  1683 (1991).  Consequently,  courts
            
have   required  strict   adherence  to   the  administrative
prerequisites set out in the Internal Revenue Code, including
the explicit and clearly  stated limitations periods at issue
here.   See Dalm, 494 U.S. at  608-10; In re Graham, 981 F.2d
                                                   
1135, 1138 (10th Cir. 1992); Bruno v. United States, 547 F.2d
                                                   
71,  73-74 (8th Cir. 1976); Dixon v. United States, 85-1 USTC
                                                  
  9173 (Cl. Ct. 1985).  

                             -12-
                              12

because of the illness of the taxpayer or his family or other

extenuating circumstances"); Stepka v. United States,  196 F.
                                                    

Supp. 184,  185 (E.D.N.Y.  1961) (the statute  of limitations

relating to  refund claims  under  the pre-1954  tax code  is

"inflexible"  and  so not  tolled  by  the taxpayer's  mental

incompetency; there are only  "rare exceptions" to the "rigid

prevailing rule[] that such statutes of limitations cannot be

extended in any circumstances," e.g., the prisoner  of war or

fraud situation); contrast, e.g., Daney v. United States, 247
                                                        

F. Supp. 533, 535 (D. Kan. 1965) (the court permitted tolling

of the limitations period on a refund claim by a noncompetent

restricted Indian because the general rules of tax law do not

apply "in a strict manner" to restricted Indians), aff'd, 370
                                                        

F.2d 791 (10th Cir. 1966). 

          In Irwin v.  Veterans Administration, 498 U.S.  89,
                                              

111 S. Ct. 453 (1990), however, the Supreme Court changed its

approach to the issue of  equitable tolling in suits  against

the government, holding that "the same rebuttable presumption

of  equitable  tolling  applicable to  suits  against private

defendants  should also  apply  to suits  against the  United

States."    Id.  at 457.4    In  reliance  on Irwin,  several
                                                   

                    

4.  Although the Court's  opinion presents some  interpretive
difficulties,  it  would  seem  to  have  overruled  or  made
irrelevant prior case law which sought to determine whether a
particular limitations period could be tolled  by determining
whether the time limit was jurisdictional or not.  See, e.g.,
                                                             
Soriano v. United  States, 352 U.S. 270, 276  (1957) (holding
                         
that a limitations period on claims against the United States

                             -13-
                              13

federal district courts  have permitted equitable tolling  of

the  limitations period  in section  6511(a) or  (b)(2)(A) in

view of  a taxpayer's  argument that mental  incompetence had

kept him  or her  from  timely filing  a refund  claim.   See
                                                             

Wiltgen v. United  States, -- F. Supp. --, 93-1 USTC   50,044
                         

(N.D.  Iowa 1992)  (section 6511(b)(2)(A));  Scott v.  United
                                                             

States,  795 F.  Supp. 1028  (D. Hawaii  1992)  (stating that
      

equitable tolling  of section 6511(a) was  at issue, although

the facts indicate that section 6511(b)(2)(A) could have been

involved as well); Johnsen v. United States, 758 F. Supp. 834
                                           

(E.D.N.Y. 1991) (section 6511(b)(2)(A)).5  In  our view,  the

                    

contained  in  the statute  granting  jurisdiction  over such
claims could not be tolled); see Irwin, 111  S. Ct. at 458-59
                                      
(White, J., concurring) (establishing a presumption  in favor
of equitable tolling against  the government was inconsistent
with   the  Court's  traditional   approach  and  essentially
overruled  Soriano).   The key  issue is  still Congressional
                  
intent, but, by creating a presumption in favor  of equitable
tolling,  the Court has squarely placed on the government the
burden of  showing that  a particular limitations  period may
not be equitably tolled.   Cf. Schmidt v. United  States, 933
                                                        
F.2d 639, 640 (8th Cir. 1991) (in an action under the Federal
Tort Claims Act after Irwin, the government has the burden of
                           
establishing  the statute  of limitations  as an  affirmative
defense). 

5.   But see Vintilla v. United States, 931 F.2d 1444, 1447 &amp;
                                      
n.1 (11th Cir.  1991), in which the  court adhered to a  pre-
Irwin mode of analysis and  ruled that the limitations period
     
in section 6511(a) may not  be equitably tolled since  timely
filing of a refund claim is a jurisdictional prerequisite  to
suit.  In  Vintilla, the  taxpayer had been  required to  pay
                   
upfront the entire  tax due on his  severance benefit whereas
similarly situated  taxpayers paid taxes as  if receiving the
benefit  in installments.  The IRS had told the taxpayer that
a  refund claim could be filed after he litigated the mode of
payment of  the severance  benefit; after the  litigation had

                             -14-
                              14

relevant analysis has been altered yet again by a more recent

Supreme Court decision.   In Lampf, Pleva, Lipkind,  Prupis &amp;
                                                             

Petigrow v. Gilbertson, --  U.S. --, 111 S. Ct.  2773 (1991),
                      

the  Supreme  Court considered  whether  to  adopt a  federal

limitations period  in private  suits under section  10(b) of

the  Securities Exchange Act of 1934 and, if so, whether that

period would  be subject  to equitable  tolling.6  The  Court

concluded  that  a  federal  limitations   period  should  be

adopted.   It selected  the 1-and-3-year  limitations periods

contained  in  the  1934 Act  and  in  the original  remedial

                    

ended,  however,  the  IRS  denied the  taxpayer's  claim  as
untimely.

6.  Although  Lampf  involved   a  lawsuit  between   private
                   
parties, it is clearly  relevant here.  As the  Supreme Court
stated  in  Irwin,  equitable  tolling  principles  in  suits
                 
against  the  government  should  be  consistent  with  those
applied  against private  defendants, and should  be employed
"no  more  favorabl[y]" against  the government  than against
private defendants.  Irwin, 111 S. Ct. at 457, 458.  
                          
     Nor do  we think that  Lampf is inapplicable  because it
                                 
considered a statute of  limitations applicable to bringing a
lawsuit rather than time  limits imposed on the filing  of an
administrative claim.  If  a specific equitable consideration
would justify tolling the limitations period for filing suit,
that same equitable consideration should  justify tolling the
administrative  time  limits  which  have  been  held  to  be
prerequisites  to  bringing  suit.   See  Johnsen  v.  United
                                                             
States,  758 F. Supp. 834, 835 n.1 (E.D.N.Y. 1991) ("the same
      
equitable considerations  are involved in  both judicial  and
administrative  procedural  defaults"  and  so  a distinction
between   the  equitable  tolling  of  judicial  actions  and
administrative exhaustion requirements cannot "reasonably" be
drawn); Zipes  v. Trans World  Airlines, Inc., 455  U.S. 385,
                                             
388-89  &amp;  n.2,  393  (1982)  (deciding that  a  "statute  of
limitations"  requiring that  a charge  of discrimination  be
filed  with the EEOC within  90 days of  the alleged unlawful
employment practice could be equitably tolled).  

                             -15-
                              15

provisions  of  the Securities  Act of  1933, as  typified by

section 9(e) of the  1934 Act.  See 111 S.  Ct. at 2781, 2782
                                   

n.9.  

          Section 9(e) prohibits  any action for  a violation

of  the section  if not  brought "within  one year  after the

discovery of the facts  constituting the violation and within

three  years after such violation."  Id. at 2780 n.6 (quoting
                                        

15  U.S.C.   78i(e)).   Citing Irwin,  the Court acknowledged
                                    

that time  limits in law  suits are "customarily"  subject to

equitable  tolling.  It also agreed that, in fraud cases, the

limitations period  does not usually begin  running until the

fraud is discovered.  Nevertheless,  the Court held that time

limits,  expressed as  in section 9(e),  were not  subject to

equitable tolling.  In the Court's view, it was "evident that

the equitable tolling  doctrine is fundamentally inconsistent

with the 1-and-3-year structure."  Id. at 2782.  It explained
                                      

what it meant as follows:

          The 1-year  period,  by  its  terms,  begins  after
          discovery of the facts constituting  the violation,
          making tolling unnecessary.   The 3-year limit is a
          period of  repose inconsistent with tolling.  . . .
          "[T]he inclusion of the  three-year period can have
          no  significance  in  this  context  other  than to
          impose  an  outside  limit."  (Citations  omitted.)
          Because the  purpose of  the  3-year limitation  is
          clearly to serve as a cutoff, we hold that  tolling
          principles do not apply to that period.

Id.
   

          We  think that  section 6511(a)  and (b)(2)(A)  are

structured like the 1-and-3-period considered  by the Supreme

                             -16-
                              16

Court in Lampf.  Under section 6511, a taxpayer who has filed
              

a return must clear two  time barriers.  The first one  is in

section 6511(a),  which requires  taxpayers to file  a refund

claim within three years of filing a return.  We have assumed

that a return can be filed at any time after its due date and

still be a return for purposes of  filing a claim within that

three-year   period.     Under   that   interpretation,   the

limitations period in  section 6511(a)  is totally  illusory.

See,  e.g.,  Mills  v. United States,  805 F.  Supp. 448, 451
                                    

(E.D. Tex. 1992) (section 6511(a) would "permit a taxpayer to

file a tax  return 40 years late and still  have 3 additional

years  in which  to  file a  claim  for  refund").   In  this

respect,  the   three-year  period  in  section   6511(a)  is

analogous to  the one-year  period discussed  in Lampf.   The
                                                      

one-year  period requires only that suit  be filed within one

year  after discovery  of the  facts which  give rise  to the

cause  of action.  Since  the discovery of  those facts could

occur any number of  years after the statutory violation  had

actually taken place, the 1-year period sets no real limit on

when suit can be brought.  

          The  analogy  between  the  limitations  period  in

section  6511(a) and  the 1-year  period typified  by section

9(e)  extends even  further.   In  Lampf,  the Supreme  Court
                                        

commented  that the  one-year  period for  filing suit  after

discovery of the  facts giving  rise to the  cause of  action

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                              17

made  tolling unnecessary.  Lampf, 111  S. Ct. at 2782.  What
                                 

the  Court obviously meant was that once someone who has been

defrauded knows  the relevant facts, the  1-year period gives

that  person ample time in which to  sue and there is no need

to  toll the 1-year limitations  period.  A  similar state of

knowledge respecting the right to a refund can  be attributed

to  individual calendar  year taxpayers  who file  income tax

returns.   The return contains all  the information necessary

to verify that  there has  been an overpayment  of taxes  and

that  a refund is due.  Accordingly, the three-year period in

section 6511(a)  gives  the taxpayer  ample  time to  file  a

refund claim, and there is no need to toll that period.

          Essentially, then, section 6511(a) serves simply to

identify which taxpayers have properly  positioned themselves

to  obtain  a  refund.   Like  the  1-year  period in  Lampf,
                                                            

however,  it  does  not  describe which  of  those  potential

claimants  will actually  succeed  in pursuing  their rights.

That  task   is  left   to   section  6511(b)(2)(A),   which,

significantly,   the  tax   code  characterizes   not   as  a

limitations period, but as a "limit on [the] amount of credit

or  refund."  See 26  U.S.C.   6511(b)(2)(A)  (caption).7  As
                 

                    

7.  Section 6511(b)(2)(A) works together with section 6511(a)
and section 6513(b)(1) to  bar recovery of any refund  claims
on  late returns not filed  within three years  after the due
date  of  the return,  and thus  it  clearly operates  like a
statute of limitations.  However, Congress's characterization
of section  6511(b)(2)(A)  as a  "limit  on [the]  amount  of
credit  or  refund"  rather  than  as  a  limitations  period

                             -18-
                              18

we  said  earlier, section  6511(b)(2)(A)  limits  the refund

recoverable to  the  amount of  tax  paid in  the  three-year

period immediately preceding the filing of the claim.  For an

individual   calendar  year  taxpayer  like  Oropallo,  taxes

withheld  from wages during the  tax year are  deemed paid on

April  15th  of the  following year,  the  date when  the tax

return is due.  See 26 U.S.C.   6513(b)(1).  For that reason,
                   

if the  return is not filed and the claim not made within the

three   years  immediately   following  that   date,  section

6511(b)(2)(A)  precludes the  recovery  of any  of the  taxes

paid. 

          Here,  Oropallo's 1983  taxes were  deemed  paid on

April  15, 1984,  and his  refund claim  was timely  filed on

March 19,  1990, the  same day  he filed  his return.   Under

section 6511(b)(2)(A)  he may recover  any taxes paid  in the

immediately  preceding three-year period,  i.e., on  or after

March  19,  1987.   But all  of the  taxes Oropallo  seeks to

recover were paid before March 19, 1987, and thus he recovers

nothing.    Unquestionably,  then,  that date  serves  as  an

absolute  cut-off point.   By imposing an  "outside limit" or

"cut-off"  on the  amount of  taxes which  can be  recovered,

section 6511(b)(2)(A) operates like the three-year portion of

the limitations period  in Lampf,  and thus is  a "period  of
                                

                    

indicates more clearly than a simple limitations period would
that Congress intended  to establish an outside limit  on the
recovery of refunds.  

                             -19-
                              19

repose inconsistent with tolling".   See 111 S. Ct.  at 2782.
                                        

See  Wiltgen v.  United States, --  F. Supp. --,  93-1 USTC  
                              

50,044  (N.D. Iowa  1992)  (calling section  6511(b)(2)(A)  a

"period of repose," but,  without referring to Lampf, finding
                                                    

that  the section  could  be equitably  tolled under  Irwin);
                                                           

McGregor  v. United States, 80-2  USTC   9647  (Ct. Cl. 1980)
                          

(calling the date beginning the three-year period immediately

preceding  the date of  a refund  claim the  "cut-off date").

Because,  together, section  6511(a)  and (b)(2)(A)  function

like   the  1-and-3-year   period  found   inconsistent  with

equitable tolling in Lampf, we conclude that those provisions
                          

may not be equitably tolled.

          B.  Remaining Claims
                              

          Oropallo's  remaining claims are  without merit for

the  reasons stated in the government's brief.  We comment on

several claims only.      

          At the  heart of  Oropallo's due process  claims is

the  contention that  he  should have  been  given a  hearing

before his refund  claim was denied  and his suit  dismissed.

The short answer is that  an administrative hearing would not

have changed  the outcome for  Oropallo.  The  critical facts

relating  to  the date  Oropallo's  taxes were  paid  and his

                             -20-
                              20

refund claim filed are not disputed.  In view of those facts,

section  6511 unquestionably bars  Oropallo's recovery of any

portion of his 1983  taxes.  Furthermore, it is  well settled

that post-collection judicial  review accords a  taxpayer all

the process that is due under our tax laws.  Martinez v. IRS,
                                                            

744 F.2d 71, 72 (10th Cir. 1984); Rosenberg  v. Commissioner,
                                                            

450 F.2d 529, 533  (10th Cir. 1971) ("[d]ue process  does not

require a hearing at  the initial stage or at  any particular

point of  an administrative proceeding"); cf.  Kahn v. United
                                                             

States, 753 F.2d 1208,  1218-19 (3d Cir. 1985)  (stating that
      

the   principle  that  post-collection   judicial  review  is

constitutionally sufficient does not  apply where a  taxpayer

has to  pay part of a  disputed penalty before  being able to

seek  judicial review,  the  court  weighed the  government's

interests against  the taxpayer's, but  concluded nonetheless

that   no   pre-collection   hearing   was   constitutionally

required).   Both  this court  and  the district  court  have

reviewed the IRS's denial of Oropallo's refund claim and have

issued opinions  explaining that his claim  is barred because

it was  untimely.   Thus,  Oropallo  has received  the  post-

collection judicial review to which he was entitled.  Second,

Oropallo argues that the  disallowance notice and various IRS

publications   referring  to  a   two-year  period  for  suit

constituted governmental consent to his suit which waived the

time bar.   This argument fails to appreciate the distinction

                             -21-
                              21

between  a  taxpayer's right  to  bring a  lawsuit  to review

administrative action and the taxpayer's  separate obligation

to pursue  first the administrative  procedures prescribed in

the  tax code.   Section 6532(a)(1)  of the  Internal Revenue

Code contains  the two-year  limitations period in  question.

It  requires a  taxpayer  suing for  a  refund under  section

7422(a) to bring suit within two years after the mailing date

of a disallowance  notice.   As is evident  from the  record,

Oropallo  complied  with  that  requirement.     But  section

6532(a)(1) regulates only  the time  for bringing  a suit  to

review  the denial of an administrative claim.  The Code also

imposes certain administrative requirements respecting refund

claims  which  Oropallo  was   required  to  follow.    Those

administrative requirements are contained in sections 7422(a)

and 6511, see Rosenbluth Trading, Inc. v. United  States, 736
                                                        

F.2d 43, 45 n.1 (2d Cir. 1984), and have been discussed fully

in this opinion.   Thus, Oropallo is right in saying  that he

complied  with  the  two-year   period  referred  to  in  the

disallowance notice,  but that  notice could not  have waived

his separate obligation to pursue his administrative remedies

in  a timely  fashion.   See Allen v.  United States,  439 F.
                                                    

Supp.  463,  465  (C.D.  Cal.  1977)  (a  notice  disallowing

taxpayer's  refund  claim  as  untimely  did  not  waive  the

government's  limitations defense  under  section 6511(a)  by

stating that the  taxpayer had  two years in  which to  bring

                             -22-
                              22

suit, but "merely . . . notif[ied] the Plaintiff of his right

to   contest   the   government's   interpretation   of   the

applicability of the statute of limitations").

          Finally,  Oropallo claims that his equal protection

rights  have been  violated because  the IRS  can reach  back

farther in time  to collect taxes  than he  can to collect  a

refund.  We think that Oropallo would be hard-pressed to show

that he and the IRS are similarly situated parties in the tax

collection context  so as  to make equal  protection analysis

applicable.   Cf. Musser v. United States, 92-1 USTC   50,245
                                         

(D. Alaska 1991) (it is not discriminatory for the government

to have a longer period to sue for recovery  of erroneous tax

refunds  than a taxpayer is allowed to sue for overpayment of

taxes  since the IRS deals  with millions of  tax returns per

year while a  taxpayer typically  has only one  return to  be

concerned about each  year).  In any  event, we find  no such

violation here.  As the  government observes, in one  respect

Oropallo's claim  is factually wrong.   Just as  the taxpayer

has three  years from the date  of filing a return  to file a

refund  claim, so  the  government generally  has only  three

years  from the date a  return is filed  to make a deficiency

assessment.    See  26 U.S.C.     6501(a).    As our  opinion
                  

explains,  however, section  6511(a) and  (b)(2)(A), together

with section 6513(b)(1), effectively  impose on a taxpayer in

Oropallo's  situation  an  additional,   absolute  three-year

                             -23-
                              23

limitations period  on refund  claims beginning the  date the

return was due.  The government does not appear to be subject

to  that   limitations  period  in   assessing  deficiencies.

Nevertheless,  the  apparent  disparate  treatment  does  not

violate Oropallo's constitutional rights.   It seems  obvious

to  us that,  if  the  government  were  held  to  that  same

additional limitations  period, any taxpayer could  (and many

might)  prevent  the   government  from   ever  assessing   a

deficiency  merely by  waiting to  file a return  until three

years after its  due date,  an outcome  that would  seriously

undermine the collection of taxes.  

          The judgment of the district court is affirmed.
                                                        

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                              24
