
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                for the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 & 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                                     ___  ________    _____________                                         -2-            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                                         -3-            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 & 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.                                         -4-            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                                         -5-            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.                      _________                                         -6-
