                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-3689
                                   ___________

Rani Abston,                         *
                                     *
      Plaintiff - Appellant,         *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Eastern District of Missouri.
Commissioner of Internal Revenue     *
Service, et al.,                     *
                                     *
      Defendant - Appellee.          *
                                ___________

                             Submitted: June 12, 2012
                                Filed: August 31, 2012
                                 ___________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ___________

LOKEN, Circuit Judge.

       When the Internal Revenue Service (IRS) denied Rani Abston’s claim for a
refund of federal income taxes as barred by the three-year limitation period in 26
U.S.C. § 6511(b)(2)(A), she timely filed this tax refund action,1 asserting that the
limitation period was suspended “for more than 310 days under 26 U.S.C. § 6511(h)



      1
       Though Abston’s pro se complaint named the Commissioner of Internal
Revenue and other Treasury Department defendants, the proper defendant in civil
actions for federal tax refunds is the United States. See 28 U.S.C. § 1346(a)(1).
as a result of Plaintiff’s financial disability.” The district court2 granted the
Government summary judgment, concluding that Abston “has not proffered the
necessary evidence to permit consideration of whether the limitations period . . . was
suspended by 26 U.S.C. § 6511(h).” Abston appeals, arguing the district court erred
in ruling that her failure to submit a physician’s statement as required by IRS
Revenue Procedure 99-21 was fatal to her claim of financial disability. Reviewing
the grant of summary judgment de novo, we affirm. Hemmingsen v. Messerli &
Kramer, P.A., 674 F.3d 814, 816 (8th Cir. 2012) (standard of review).

       On April 15, 2003, the due date for her 2002 federal income tax return, Abston
knew the IRS would apply any refund to repay her defaulted student loans. See 26
U.S.C. § 6402. Consequently, she did not file a return and claim a $2,859 refund
until February 2007, after she resolved her student loan obligations. The IRS denied
the claim on the ground that, “to obtain a refund, you have to file your tax return
within 3 years from its due date.” The June 2008 denial letter advised Abston that
she could appeal the decision and that exceptions extending the time to file refund
claims include “financial disability.” The letter recited the statutory definition of
financial disability, and urged Abston to review IRS Publication 556 “for additional
details regarding these exceptions.” The record on appeal includes an IRS “Case
Activity Record Print” recording that, in February 2009, an Appeals Officer advised
Abston “what she needed for financial disability.” Abston then met with the Appeals
Officer but “came with nothing” and was advised of her option to seek judicial review
of the denial. This lawsuit followed.

       Abston’s refund claim was untimely under the three-year “look back”
limitation in 26 U.S.C. § 6511(b)(2)(A). See generally Commissioner v. Lundy, 516


      2
       The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri, presiding under consent of the parties pursuant to 28 U.S.C.
§ 636(c)(1).

                                         -2-
U.S. 235, 239-40 (1996). In United States v. Brockamp, 519 U.S. 347, 350 (1997),
a unanimous Supreme Court held that courts may not use nonstatutory equitable
reasons to toll the “unusually emphatic” time limitations set forth in 26 U.S.C.
§ 6511. In 1998, Congress responded by enacting a statutory exception to the time
limitations in § 6511(a)-(c) applicable to any period in which an individual taxpayer
is “financially disabled.” Pub. L. 105-206, § 3202(a), 112 Stat. 740 (codified at 26
U.S.C. § 6511(h)(1)). The statute defines financial disability and specifies the
manner in which a taxpayer may establish that she qualifies for the exception:

      [A]n individual is financially disabled if such individual is unable to
      manage his financial affairs by reason of a medically determinable
      physical or mental impairment . . . which can be expected to result in
      death or which has lasted or can be expected to last for a continuous
      period of not less than 12 months. An individual shall not be considered
      to have such an impairment unless proof of the existence thereof is
      furnished in such form and manner as the Secretary may require.

§ 6511(h)(2)(A) (emphasis added). In 1999, the IRS issued Revenue Procedure 99-21
prescribing the “form and manner” the Secretary requires to prove a “medically
determinable physical or mental impairment.” See 1999-1 Cum. Bull. 960.3 The
Revenue Procedure provides in relevant part:

      1. Purpose

      This revenue procedure describes the information that is required under
      section 6511(h)(2)(A) of the Internal Revenue Code in order to request


      3
       The Treasury Regulations provide that one purpose of Revenue Procedures is
“to announce practices and procedures for guidance of the public.” 26 C.F.R.
§ 601.601(d)(2)(vi). To this end, one type of Revenue Procedure is “a statement of
procedure that affects the rights or duties of taxpayers or other members of the public
under the Code and related statutes.” Id. at § 601.601(d)(2)(i)(b).

                                          -3-
suspension of the period of limitations under section 6511 for claiming
a credit or refund of tax due to an individual taxpayer’s financial
disability. This information is required to be submitted with the
taxpayer’s claim for credit or refund of tax.

                           *    *   *     *   *

4. Procedure

Unless otherwise provided . . . the following statements are to be
submitted with a claim for credit or refund of tax to claim financial
disability for purposes of § 6511(h).

      (1) a written statement by a physician (as defined in . . . the Social
      Security Act, 42 U.S.C. § 1395x(r)), qualified to make the
      determination, that sets forth:

      (a) the name and a description of a taxpayer’s physical or mental
      impairment;

      (b) the physician’s medical opinion that the physical or mental
      impairment prevented the taxpayer from managing the taxpayer’s
      financial affairs;

      (c) the physician’s medical opinion that the physical or mental
      impairment was or can be expected to result in death, or that it has
      lasted (or can be expected to last) for a continuous period of not
      less than 12 months;

      (d) to the best of the physician’s knowledge, the specific time
      period during which the taxpayer was prevented by such physical
      or mental impairment from managing the taxpayer’s financial
      affairs; and

      (e) the following certification, signed by the physician: I hereby
      certify that, to the best of my knowledge and belief, the above
      representations are true, correct, and complete.

                                    -4-
       Abston failed to comply with Revenue Procedure 99-21 when she did not
submit a physician statement with her initial refund claim, or during her
administrative appeal of the claim denial, despite explicit warnings by the IRS of the
need to do so. Although no circuit court has considered this issue, numerous district
courts have dismissed taxpayer refund suits as time-barred by § 6511 because the
taxpayer’s claim of financial disability was not supported by a physician’s statement
complying with Revenue Procedure 99-21. See Castaners v. United States, No. 11
C 5130, 2012 WL 1802151, at *4 (N.D. Ill. May 16, 2012); Pleconis v. IRS, No. 09-
5970, 2011 WL 3502057, at *5 (D.N.J. Aug. 10, 2011); Ibeagwa v. United States, No.
09 C 1267, 2009 WL 3172165, at *2 (N.D. Ill. Sept. 30, 2009); Nunn v. United
States, No. 3:08CV-199-S, 2009 WL 260803, at *4 (W.D. Ky. Feb. 4, 2009); Henry
v. United States, No. 3:05-CV-1409-D, 2006 WL 3780878, at *4 (N.D. Tex. Dec. 26,
2006); Glover v. United States, No. 05-CV-60044-A, 2005 WL 1926614, at *2 (E.D.
Mich. July 11, 2005). We agree.

      Abston argues that the failure to comply with Revenue Procedure 99-21 should
not be dispositive – that the district court should have made an independent
determination that she was “financially disabled” for purposes of § 6511(h) after she
submitted an affidavit and 137 pages of medical records that chronicled her medical
conditions. We reject this contention for multiple reasons.

      First, the contention is contrary to the plain meaning of the statute. Federal
courts have no jurisdiction over a tax refund suit “until a claim for refund or credit
has been duly filed with the Secretary, according to the provisions of law in that
regard.” 26 U.S.C. § 7422(a); see Lundy, 516 U.S. at 239-40. Section
§ 6511(h)(2)(A) expressly provides that a taxpayer “shall not be considered
[financially disabled] unless proof of [a disabling impairment] is furnished in such
form and manner as the Secretary may require.” Thus, Abston’s refund claim was not


                                         -5-
“duly filed.” The limited waiver of sovereign immunity in § 6511(h) does not grant
district courts power to decide de novo that a taxpayer was financially disabled.

      Second, the independent judicial determination of financial disability Abston
seeks would be the kind of nonstatutory tolling the Supreme Court barred in
Brockamp. The administrative burden of responding to late claims, the Court
explained, “tells us that Congress would likely have wanted to decide explicitly
whether, or just where and when, to expand the statute’s limitations periods, rather
than delegate to the courts a generalized power to do so whenever a court concludes
that equity so requires.” 519 U.S. at 353. The judicial remedy Abston urges is
contrary to that principle and therefore beyond the power of the lower federal courts.

      Third, although Abston complains at length that Revenue Procedure 99-21 was
adopted without the benefit of notice-and-comment rulemaking, she cites no authority
suggesting that the IRS was not authorized to address this issue of tax practice and
procedure in a Revenue Procedure. In § 6511(h)(2)(A), Congress did not direct the
Secretary to prescribe requirements by regulation, as it has elsewhere in the Internal
Revenue Code. See 26 U.S.C. § 1502 (rules for filing consolidated returns).

       Congress defined “financial disability” as meaning that an individual “is unable
to manage his financial affairs by reason of a medically determinable physical or
mental impairment.” § 6511(h)(2)(A). Knowing that the IRS would need to fairly
and efficiently process a potentially large number of such claims, Congress instructed
the Secretary to prescribe the method by which an individual could prove such an
impairment. In Revenue Procedure 99-21, the Secretary logically prescribed, “Bring
a doctor’s note.” Under any standard of judicial review of executive agency action,
we must uphold this threshold requirement as an appropriate exercise of the authority
Congress delegated to the Secretary. We need not decide in this case the extent to
which courts may review the IRS’s denial of a refund claim as untimely when the
taxpayer submitted a physician’s statement that substantially complied with Revenue

                                         -6-
Procedure 99-21, an issue considered in Bowman v. United States, No. S-09-0167,
2010 WL 2991712, at *6 (E.D. Cal. July 29, 2010), and Walter v. United States, No.
09-420, 2009 WL 5062391, at *11 (W.D. Pa. Dec. 16, 2009). Because Abston failed
to submit a physician’s statement altogether, we agree with the district court that she
did not provide the IRS with probative evidence of financial disability, and therefore
her claim was properly denied as time-barred by § 6511(b)(2)(A).

      The judgment of the district court is affirmed.
                     ______________________________




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