           Case: 16-17643   Date Filed: 08/24/2017   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17643
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:16-cv-00719-GKS-KRS



MARY N. GARRETSON,

                                                           Plaintiff-Appellant,

                                 versus

UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (August 24, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
               Case: 16-17643     Date Filed: 08/24/2017     Page: 2 of 3


      Pro se petitioner Mary Garretson appeals the district court’s dismissal of her

civil suit seeking a refund for overpaid taxes, filed pursuant to 26 U.S.C. § 7422.

Because Garretson filed her complaint outside of the two-year statute of limitations

and because the circumstances of the case did not warrant equitable tolling, the

district court dismissed her suit for lack of subject matter jurisdiction. On appeal,

Garretson contends that the court should have equitably tolled the statute of

limitations because she timely filed an action for a refund, but did so in the wrong

court. The government responds that the two-year statute of limitations for filing a

refund suit, set forth in 26 U.S.C. § 6532(a), is jurisdictional, such that equitable

tolling does not apply. They further contend that even if equitable tolling was an

available remedy, it is not applicable to Garretson. After a careful review, we

affirm.

      We review de novo the district court’s decision to grant a motion to dismiss

for lack of subject matter jurisdiction. Christian Coal. of Fla., Inc. v. United

States, 662 F.3d 1182, 1188 (11th Cir. 2011).

      We need not address whether 26 U.S.C. § 6532(a)’s statute of limitations is

jurisdictional in nature, and thus subject to equitable tolling, to affirm the district

court’s dismissal. In First Alabama Bank, N.A. v. United States, we upheld the

district court’s dismissal of a taxpayer’s refund claim as time-barred because, even

assuming arguendo that equitable tolling applied to the statute of limitations set out


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in 26 U.S.C. § 6532(a), the circumstances did not warrant it. 981 F.2d 1226,

1228–29 (11th Cir. 1993). Equitable tolling applies only in situations in which a

plaintiff’s filing was untimely because of extraordinary circumstances that are

beyond her control and unavoidable even with diligence. Arce v. Garcia, 434 F.3d

1254, 1261 (11th Cir. 2006). Even if we were to assume that equitable tolling is

available here, like we did in First Alabama Bank, the circumstances do not

warrant such relief. See 981 F.2d at 1228–29. Garretson’s own lack of diligence

caused her to file suit in the wrong forum. She was twice warned by the Internal

Revenue Service that she must file her claim in either the district court or the

Federal Claims Court within two years. She was also warned that administratively

appealing the disallowance of her claim did not toll the statute of limitations.

Nevertheless, she filed her claim two years after the Internal Revenue Service sent

the notice of the disallowance of her claim in the Tax Court instead.

      Therefore, regardless of whether the statute of limitations at issue here is

jurisdictional in nature, we can affirm the district court’s dismissal. Even if we

accept Garretson’s contention that the statute of limitations is non-jurisdictional,

making equitable tolling an available remedy, equitable tolling is not warranted

here. Accordingly, we affirm the district court’s dismissal of Garretson’s

complaint.

      AFFIRMED.


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