                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2006

Shearin v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1678




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-1678
                                  ________________

                                    K. Kay Shearin
                                           Appellant
                                          v.

                              United States of America
                      ____________________________________

                    On Appeal From the United States District Court
                             For the District of Delaware
                                (D.C. No. 02-cv-00266)
                        District Judge: Honorable Kent Jordan
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 7, 2006

          Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                 (Filed: July 24, 2006 )

                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      K. Kay Shearin seeks a refund or credit for taxes she paid in 1993 and damages

against the IRS for unlawful collection. The District Court granted the IRS summary
judgment and this appeal followed.1 For the reasons below, we will affirm.

       We recount only the facts relevant to the disposition of this appeal. In 1993

Shearin paid the IRS $10,000 for her tax liability for 1991 and 1992. In April 1997, she

filed tax returns for 1990 through 1996. In 1998, Shearin filed amended returns for 1991

and 1992 to remove some income. Based on this, she claimed a credit on her 1997 return.

The IRS did not allow the credit. The IRS informed Shearin that she was deficient in her

taxes and later filed liens against her bank account and house and filed a levy with her

employer. Shearin filed for bankruptcy in December 2001 and her tax liability for 1990-

1996 was discharged in March 2002. In the present suit, she seeks both a refund of her

payments from 1993 and damages for allegedly unlawful attempts to collect taxes.

       Because Shearin is seeking a refund of taxes paid in 1993, her refund claim is

time-barred under 26 U.S.C. § 6511(b). Section 6511(b)(2)(A) limits the amount a

taxpayer can recover in a refund suit to money paid on the tax in question within three

years of the refund claim. In this case, the refund claim was on February 28, 1998.

Shearin cannot recover her 1993 payment.

       We reject Shearin’s argument that the running of the statute of limitations was

tolled under § 6511(h) because that section does not apply to claims that were barred

before its effective date, July 22, 1998. See Historical and Statutory Notes for 26

U.S.C.A. § 6511. Because Shearin’s claim was already barred in 1996, § 6511(h) does

   1
    We have jurisdiction under 28 U.S.C. § 1291; our review is plenary, Camiolo v. State
Farm Fire & Cas. Co., 334 F.3d 345, 354 (3d Cir. 2003).

                                             2
not apply. We also reject her claim for equitable tolling, which does not apply to § 6511.

United States v. Brockamp, 519 U.S. 347, 354 (1997) (“Congress did not intend the

“equitable tolling” doctrine to apply to § 6511’s time limitations.”); Doe v. KPMG, LLP,

398 F.3d 686, 689 (5th Cir. 2005) (confirming the continued force of Brockamp after

enactment of § 6511(h)).

       Shearin tries to avoid the effect of § 6511(b)(2)(A) by arguing that her claim is

only for money paid in the three years prior to February 1998. She maintains that the

money paid in 1993 should have carried over to those years and reduced her tax liability

for 1995-1998. Shearin’s argument is evidently that a taxpayer who has paid taxes in the

previous three years can avoid § 6511(b)(2)(A) to the extent of those taxes simply by

filing a late return for the year for which she seeks a refund. This reasoning eviscerates

the “unusually emphatic” time limitations of § 6511, Brockcamp, 519 U.S. at 351, and we

reject it in light of the chief objective of Congress in enacting § 6511: “providing the

Government with strong statutory ‘protection against stale demands.’” Id. at 353 (quoting

United States v. Garbutt Oil Co., 302 U.S. 528, 533 (1938)); see also Carroll v. United

States, 339 F.3d 61, 76 (2nd Cir. 2003) (“The ‘tax paid’ therefore refers to the sum of

taxes, penalties, and interest paid for the tax year in question.”).

       Shearin also claims that the IRS is liable under §§ 7432 & 7433 for violating the

Bankruptcy Court’s discharge under 11 U.S.C. § 524(a) and for violating the automatic

stay under 11 U.S.C. § 362(a). According to Shearin, the levy on her employer in



                                               3
September 2004, and various tax notices she has received, violated the 2002 bankruptcy

discharge. However, she has not exhausted her administrative remedies for these claims

as required under both § 7432(d)(1) and § 7433(d)(1). The District Court, therefore, did

not have jurisdiction over these claims. Venen v. United States, 38 F.3d 100, 103 (3d Cir.

1994).2

       Shearin also asserts that the IRS violated 11 U.S.C. § 362(a) by disregarding the

automatic stay. She claims that the violations constitute “unauthorized collection actions”

under 26 U.S.C. §§ 7432 & 7433. Both parties agree that the IRS filed a lien on her home

in 2000 and imposed levies on her bank account in April and August of 2001. These

actions could not have violated the automatic stay because they occurred before it began

on December 3, 2001.3

       Shearin’s other arguments on appeal were either not presented to the District Court

or are without merit. We will, therefore, affirm the judgment of the District Court.




   2
    Shearin notes that the IRS did not raise the issue of exhaustion before the District
Court. However, because this is a jurisdictional question (see Venen, supra) it cannot be
waived. See In re Morrissey, 717 F.2d 100, 102 (3d Cir. 1983).


   3
     Although Shearin also points to a lien filed in February 2002, she did not refer to it in
the District Court, so we will not consider it here. Morris v. Hoffa, 361 F.3d 177, 191 (3d
Cir. 2004). The only action Shearin alleged before the District Court that occurred during
the automatic stay was the sending of a “Reminder Notice.” However, a bankruptcy court
had already found that the IRS did not violate the automatic stay by sending the notice.
See Doc. 53, Ex. C.

                                              4
