            In the United States Court of Federal Claims
                                         No. 13-882T

                                    (Filed: August 7, 2014)

                                             )
MARIA ESTHER MONTIEL,                        )       Tax case; claim for refund of taxes paid
                                             )       by a person alleged to be a nonresident
                      Plaintiff,             )       alien; timeliness of request for refund;
                                             )       I.R.C. §§ 6511, 7422; genuine dispute of
       v.                                    )       jurisdictional fact
                                             )
UNITED STATES,                               )
                                             )
                      Defendant.             )
                                             )

        Patrick W. Martin, Procopio, Cory, Hargreaves & Savitch LLP, San Diego, California,
for plaintiff. With him on the brief was Eric D. Swenson, Procopio, Cory, Hargraves & Savitch
LLP, San Diego, California.

       Jennifer Dover Spriggs, Attorney, Court of Federal Claims Section, Tax Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the briefs were
Kathryn Keneally, Assistant Attorney General, Tax Division, and David I. Pincus, Chief, and
Mary M. Abate, Assistant Chief, Court of Federal Claims Section, Tax Division, United States
Department of Justice, Washington, D.C.

                                    OPINION AND ORDER

Judge LETTOW

        In this tax case, plaintiff Maria Montiel seeks to obtain a refund for her 2007 and 2008
federal income taxes, which she contends were erroneously collected from her by the Internal
Revenue Service (“IRS”). Pending before the court is the government’s motion to dismiss for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States
Court of Federal Claims (“RCFC”).

                                       BACKGROUND 1

       Ms. Montiel, a citizen and resident of Mexico, filed suit in this court on November 7,
2013, after her refund claims for overpaid income taxes in 2007 and 2008 were denied by the


       1
        The recitation of background information does not constitute findings of fact by the
court and is given solely to provide a context for deciding the current motion. Unless otherwise
noted, however, the circumstances appear to be undisputed.
                                                 1
IRS. The critical question in the case is whether Ms. Montiel is a nonresident alien or a resident
alien. This question has jurisdictional implications given the specific factual setting presented.

                                          Tax Year 2007

         On March 16, 2008, Ms. Montiel filed a Form 1040, United States Individual Income Tax
Return, with the IRS for the tax year 2007, pursuant to the advice and direction of a United
States tax return preparer. Compl. ¶ 9. 2 The form designated Ms. Montiel’s filing status as
“resident alien” and listed a family member’s address in California as her own, causing the form
to be filed at the IRS’s Fresno Service Center. Compl. ¶ 10. With the return, Ms. Montiel paid
both tax and an estimated tax penalty. Compl. Ex. A, at 2. Subsequently, Ms. Montiel
determined that she was a “nonresident alien” for federal tax purposes under 26 U.S.C. (“I.R.C.”)
§ 7701(b)(1)(B), and should have filed a Form 1040NR for 2007. Compl. ¶ 11. 3 Accordingly,
she set out to amend her original Form 1040 for that year. Compl. ¶ 12.

        On June 10, 2011, Ms. Montiel filed a Form 1040X, Amended Individual Income Tax
Return for 2007, together with a completed Form 1040NR and a copy of her original Form 1040
for 2007. Compl. ¶ 12 & Ex. B. The submission reflected both an overpayment and a refund
request in the amount of $8,772. Id. That request, however, was denied by the IRS on May 31,
2012 as untimely. Compl. ¶ 14 & Ex. D; see also Def.’s Mot. to Dismiss at 3, ECF No. 14.
According to the IRS, Ms. Montiel had to file her amended form by April 15, 2011, that is,
within three years of filing her income tax return on April 15, 2008, 4 or within two years of
paying her 2007 taxes. Compl. Ex. D; see also Def.’s Mot. to Dismiss at 3. Because Ms.
Montiel’s submission in June 2011 exceeded that deadline by two months, the IRS deemed her
ineligible for a refund. Compl. Ex. D.



       2
         Some dates listed by the parties in their briefs and exhibits vary slightly in several
respects. In all but one instance, which is noted, the legal analysis remains unaffected by these
variations. The dates cited in this opinion are derived from Ms. Montiel’s complaint, as courts
must construe allegations of the complaint in favor of the pleader when evaluating a motion to
dismiss under Rule 12(b)(1). See Northwest La. Fish & Game Pres. Comm’n v. United States,
574 F.3d 1386, 1390 (Fed. Cir. 2009) (citing Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 747 (Fed. Cir. 1988)); Edwards v. United States, 92 Fed. Cl. 277, 282 (2010).
       3
         During both the tax years of 2007 and 2008, Ms. Montiel was a citizen and resident of
Mexico City in Mexico, who traveled in the United States on a B1/B2 visa as a visitor for
business and pleasure. Pl.’s Brief in Opp’n to Def.’s Mot. to Dismiss for Lack of Subject Matter
Jurisdiction (“Pl.’s Opp’n”) at 2, ECF No. 15. She allegedly spent less than 60 days in the
United States each year. Id.
       4
        In accord with I.R.C. § 6513, the IRS considers all tax returns “filed before the last day
prescribed for filing . . . as filed on such last day.” I.R.C. § 6513(a). Thus, despite the fact that
Ms. Montiel filed her tax return on March 19, 2008, the IRS marked it as filed on April 15, 2008,
the due date for individual income tax returns filed by U.S. residents under I.R.C. § 6072(a). See
Def.’s Mot. to Dismiss at 2.


                                                 2
                                          Tax Year 2008

         Ms. Montiel also filed a Form 1040, U.S. Individual Income Tax Return, for the 2008 tax
year. Compl. ¶ 19. Filed on February 25, 2009, this form similarly designated Ms. Montiel’s
filing status as “resident alien,” and again listed her relative’s address in California as her own,
resulting in another filing at the IRS’s Fresno Service Center. Compl. ¶¶ 19, 20 & Ex. F. As
before, she paid both tax and an estimated tax penalty, Compl. Ex. F, at 2, but later amended that
return to conform with “nonresident” status. Compl. ¶¶ 21-22 & Exs. G & H; see also Def.’s
Mot. to Dismiss at 3. She filed a Form 1040X, Amended Individual Income Tax Return, on June
13, 2012, attaching a completed Form 1040NR for a “nonresident alien” and a copy of her
original Form 1040 for 2008, reflecting an overpayment and refund request for $2,254. Compl. ¶
22 & Exs. G & H. This request was denied by the IRS as untimely on October 9, 2012, given
that it was submitted more than three years after April 15, 2009. Compl. ¶ 24 & Ex. I; see also
Def.’s Mot. to Dismiss at 4.

                                         The Current Suit

        Ms. Montiel seeks refunds for the 2007 and 2008 tax years, alleging that they were
improperly denied by the IRS. She contends that the effective filing date for her original returns,
and thus the start of the IRS’s three-year statute of limitations for her amended returns, should
have been June 15, the deadline set forth in I.R.C. § 6072(c) for tax returns filed by “nonresident
aliens,” not April 15, the deadline for returns filed by U.S. residents. See Compl. ¶¶ 15, 25; see
also 26 U.S.C. § 6072(c) (“Returns made by nonresident alien individuals . . . shall be filed on or
before the 15th day of June following the close of the calendar year.”). 5 The government,
however, argues that because Ms. Montiel originally filed as a “resident alien,” the IRS
justifiably started her limitations period on April 15 and properly denied her refund claims.
Def.’s Mot. to Dismiss at 6-8. Ms. Montiel contends that her tax deadline should have been
based on her nonresidency status and not the form she filed, see Pl.’s Opp’n at 8-10, but the
government maintains that she forewent a June 15 filing date when she represented herself as a
resident of the United States for tax purposes and cannot now use a different status to legitimate
her late filing for a refund, see Def.’s Reply Brief in Support of Mot. to Dismiss (“Def.’s Reply”)
at 8, ECF No. 16.

                                        JURISDICTION

        Under the Tucker Act, 28 U.S.C. § 1491(a)(1), the Court of Federal Claims has
jurisdiction to hear certain monetary claims against the United States government. 28 U.S.C.
§ 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the Constitution, or any

       5
         While Ms. Montiel alleges that she promptly filed her Form 1040X for 2008 on June 13,
2012, Compl. ¶ 22, the government avers that she did so on June 16, 2012, Def.’s Mot. to
Dismiss at 6, which would exceed both the April 15 and June 15 deadlines. This discrepancy
presents a dispute of jurisdictional fact. In support of her position, Ms. Montiel provided a copy
of her amended return dated June 8, 2012, along with a copy of a receipt from the Postal Service
for certified mail, dated June 13, 2012. Compl. Ex. G.


                                                 3
Act of Congress or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding
in tort.”). That said, the Act itself does not create a substantive right to monetary relief. United
States v. Testan, 424 U.S. 392, 398 (1976). Rather, plaintiffs must identify an additional money
mandating statute in order to recover damages from the government. United States v. Mitchell,
463 U.S. 206, 216-17 (1983) (citing Testan, 424 U.S. at 400).

        Here, I.R.C. § 7422(a) provides the requisite statutory basis for tax refund suits. See
Edwards, 92 Fed. Cl. at 280-81 (citing Chicago Milwaukee Corp. v. United States, 40 F.3d 373,
374 (Fed. Cir. 1994)). However, Subsection 7422(a) stipulates that “[n]o suit or proceeding shall
be maintained in any court for the recovery of any internal revenue tax . . . until a claim for
refund or credit has been duly filed with the Secretary.” I.R.C. § 7422(a) (emphasis added).
I.R.C. § 6511 sets forth the requirements for “duly filed” refund claims. Edwards, 92 Fed. Cl. at
281. It states that such claims must be “filed by the taxpayer within 3 years from the time the
return was filed or 2 years from the time the tax was paid.” I.R.C. § 6511(a). No credits or
refunds may be made after that time. I.R.C. § 6511(b)(1).

         The filing requirements of Subsection 6511(a), particularly the deadlines for refund
claims, constitute a jurisdictional bar. See United States v. Brockamp, 519 U.S. 347, 350 (1997),
superseded in part by statute, i.e., the Internal Revenue Service Restructuring and Reform Act of
1998, Pub. L. No. 105-206, § 3302(a), 112 Stat. 685, 740-41, as recognized in Brosi v.
Commissioner, 120 T.C. 5, 12 n.6 (2003); see also Murdock v. United States, 103 Fed. Cl. 389,
392-93 (2012) (comparing Subsection 6511(a), which is jurisdictional for this court, to
Subsection 6511(b), which is not). Consequently, when read together, as suggested by the
Supreme Court, Sections 6511 and 7422 bar suits for refunds when the underlying refund claims
fail to comply with the time limits imposed by Subsection 6511(a). United States v. Clintwood
Elkhorn Mining Co., 553 U.S. 1, 5 (2008); see also Radioshack Corp. v. United States, 566 F.3d
1358, 1361 (Fed. Cir. 2009).

                                 STANDARD FOR DECISION

         Under RCFC 12(b)(1), a claim should be dismissed for lack of subject matter jurisdiction
if the statute invoked by the plaintiff is not money-mandating, or, if the applicable statute of
limitations is jurisdictional and bars the claim presented. Edwards, 92 Fed. Cl. at 282 (citing
John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008), and Adair v. United
States, 497 F.3d 1244, 1251 (Fed. Cir. 2007)). When considering a motion to dismiss under Rule
12(b)(1), the court must construe all unchallenged factual allegations in the pleader’s favor.
Reynolds, 846 F.2d at 747; Montano Elec. Contractor v. United States, 114 Fed. Cl. 675, 679
(2014) (citing McAfee, Inc. v. United States, 111 Fed. Cl. 696, 706 (2013)). The plaintiff,
however, must prove any disputed jurisdictional facts by a preponderance of the evidence.
McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Reynolds, 846
F.2d at 748; see also Edwards, 92 Fed. Cl. at 282 (“With respect to RCFC 12(b)(1), the plaintiff
bears the burden of proving, by a preponderance of the evidence, that the court possesses subject
matter jurisdiction.” (citing Reynolds, 846 F.2d at 748)).




                                                  4
                                            ANALYSIS

       Whether Ms. Montiel’s refund claims were timely within the statute of limitations set by
Subsection 6511(a) depends upon her resident status. I.R.C. § 7701 defines an individual as a
nonresident alien if she is neither a citizen nor a resident of the United States. I.R.C.
§ 7701(b)(1)(B). An alien is deemed a resident for tax purposes if she has been lawfully
admitted for permanent residence or has been substantially present in the United States. I.R.C.
§ 7701(b)(1)(A)(i), (ii). Paragraph 7701(b)(3) stipulates that an individual is substantially
present in the United States for tax purposes if she (i) was present in the United States on at least
31 days during the calendar year, and (ii) the sum of the number of days on which she was
present in the United States during the current year and the two preceding calendar years (when
multiplied by an applicable multiplier) exceeded 183 days. I.R.C. § 7701(b)(3)(A). 6

        In her complaint, Ms. Montiel alleges that she never qualified as a resident for tax
purposes in 2007 or 2008. Pl.’s Opp’n at 6. Rather, she avers that she was a citizen and resident
of Mexico, traveling in the United States on a B1/B2 visa for less than 60 days each year. Id.
Read in conjunction with I.R.C. §§ 7701(b)(1)(A) and (B), this averment indicates that she
should have been considered a “nonresident alien” for tax purposes, and that she should have
filed a Form 1040NR for each of the tax years in question. See Treas. Reg. § 1.6012-1(b)(1)
(2012) (“[E]very nonresident alien individual . . . who is engaged in trade or business in the
United States at any time during the taxable year or who has income which is subject to taxation
under subtitle A of the [I.R.C.] shall make a return on Form 1040NR.”).

        Residency status directly affects the filing deadlines set by Subsection 6511(a). Unlike
citizens and resident wage earners, who must file a Form 1040, Individual Income Tax Return,
with the IRS by April 15 every calendar year, see I.R.C. § 6072(a), nonresidents have until June
15 to file their comparable Form 1040NR, see I.R.C. § 6072(c). The IRS deems all timely
returns as filed on their due dates, regardless of when they are actually submitted. I.R.C.
§ 6513(a). The statute of limitations imposed by Subsection 6511(a) begins to run on the
effective filing date.

        Ms. Montiel shows that she filed amended returns on June 10, 2011 and June 13, 2012,
within three years of the June 15 filing date for “nonresident aliens.” She avers that although she
originally filed returns on Form 1040 instead of Form 1040NR for 2007 and 2008, those returns
should have been deemed filed June 15, 2008 and 2009, respectively, given her residency status.
Pl.’s Opp’n at 9. The government does not dispute that Ms. Montiel is a citizen and resident of
Mexico. Instead, the government contends that her filing of resident tax returns governs the time
her amended returns were due. Def.’s Mot. to Dismiss at 7 (“Under the plain reading of
§ 6511(a), the phrase ‘the return’ refers to the form that was actually filed.”); see also id. at 8
(“[T]hat a taxpayer does not learn until after the limitations period has run that a tax was paid in
error, and that he or she has a ground upon which to claim a refund, does not operate to lift the
statutory bar.” (citing United States v. Dalm, 494 U.S. 596, 609 n.7 (1990))).

       6
        Clause 7701(b)(1)(A)(iii) provides that an individual may establish residency even if the
foregoing two tests have not been satisfied, if she makes a “first-year election” under I.R.C.
§ 7701(b)(4). No showing has been made that Ms. Montiel made such an election.


                                                  5
        Consequently, the effective filing dates of Ms. Montiel’s tax returns for 2007 and 2008
pose disputed issues of jurisdictional fact, as they ultimately determine whether or not
Ms. Montiel complied with the statute of limitations imposed by Subsection 6511(a) and can
now file suit for refunds. Notably, Ms. Montiel could have obviated this jurisdictional issue if
she had filed her amended returns two months earlier. On the facts presented, however, the
government has not shown that Ms. Montiel’s filing of returns on Form 1040 precludes her as a
matter of law from submitting her requests for refund based on Form 1040NR within the time
allowed for nonresident aliens. Its arguments by counsel are based upon precedents of tangential
relevancy. To support its argument that Ms. Montiel should be bound by the date her “resident”
return was filed, the government conflates the filing of a particular form with the payment of a
particular tax. See Def.’s Reply at 4 (citing Little People’s School, Inc. v. United States, 842
F.2d 570 (1st Cir. 1988)). Little People’s School concerned taxpayers who mistakenly paid
taxes, not taxpayers who mistakenly filed incorrect forms. 842 F.2d at 571. The government’s
other cited precedents are also unpersuasive. 7 Because Ms. Montiel has set forth a plausible
claim for refunds, provided evidence of her qualifications as a “nonresident alien,” and shown
her compliance with the filing requirements established for those with “nonresident” status, she
has presented triable issues concerning the court’s jurisdiction. The government’s motion to
dismiss accordingly cannot be granted. See Edwards, 92 Fed. Cl. at 285 (denying a motion by
the government to dismiss for lack of jurisdiction because “[t]he court’s determination of
whether it has subject matter jurisdiction over plaintiff’s claim, or is barred from considering the
clam because it is outside the statute of limitations, is tied up with its determination of whether
plaintiff filed a timely and adequate informal claim for refund); see also Banks v. United States,
741 F.3d 1268, 1277 (Fed. Cir. 2014) (“If a motion to dismiss for lack of subject matter
jurisdiction . . . challenges the truth of the jurisdictional facts alleged in the complaint, the [trial]




        7
         The government’s citation to Germantown Trust Co. v. Commissioner, 309 U.S. 304
(1940), Def.’s Reply at 8-9, is closer to the mark, but nonetheless does not directly apply or point
to a particular result here. In that case, a taxpayer had filed a trust return but was later
determined to be an association taxable as a corporation. 309 U.S. at 305-06. The Supreme
Court held that the taxpayer’s return, although filed on the wrong form, contained all of the
information from which a tax could be computed and assessed and consequently was sufficient
to bar the Commissioner from preparing a substitute corporate return and assessing a deficiency
of tax, after the expiration of the statutory period for doing so if a return was deemed filed. Id. at
308. The Court held that the return that had been filed was sufficient to trigger the timeliness bar
on the Commissioner’s subsequent assessment. Id. at 309-10. Zellerbach Paper Co. v.
Helvering, 293 U.S. 172 (1934), also is a decision similar in effect. In Zellerbach Paper, the
Supreme Court held that a return rendered inaccurate or incomplete by an intervening change of
law was nonetheless a return for limitations purposes, and thus subsequent assessments were
barred. Id. at 180-82. Drawing upon Germantown Trust and Zellerbach Paper, courts derived a
four-part test to determine whether a filing with the IRS constitutes a “return.” See In re
Hindenlang, 164 F.3d 1029, 1033 (6th Cir. 1999); Beard v. Commissioner, 82 T.C. 766, 777
(1984), aff’d, 793 F.2d 139 (6th Cir. 1986). These decisions respecting a “return” do not answer
the particular jurisdictional question posed in this case.


                                                    6
court may consider relevant evidence . . . to resolve the factual dispute.” (quoting Reynolds, 846
F.2d at 747) (internal quotation marks omitted)). 8

                                            CONCLUSION

        The facts alleged and plausibly supported indicate that Ms. Montiel may well have
complied with the tax refund procedures set forth in I.R.C. §§ 6511 and 7422. Given the
resulting genuine dispute of jurisdictional fact, the government’s motion to dismiss under RCFC
12(b)(1) is DENIED. Trial must be had on the jurisdictional facts.

      On or before September 5, 2014, the government shall file its answer to Ms. Montiel’s
complaint.

       It is so ORDERED.

                                             s/ Charles F. Lettow
                                             Charles F. Lettow
                                             Judge




       8
         Ms. Montiel references an IRS Service Center Advisory, in which the IRS Office of
Chief Counsel addressed the translation of information on a Form 1040 erroneously filed by a
nonresident to a Form 1040NR. Pl.’s Opp’n at 9-10 (citing to I.R.S. S.C.A. 200317021 (Apr. 25,
2003)). The government contests the import of the Advisory to this case, Def.’s Reply at 6, but
the court need not resolve that resulting disagreement at this juncture. Such an advisory is not
precedential, see Amtel, Inc. v. United States, 31 Fed. Cl. 598, 602 (1994) (“The Code
specifically precludes [plaintiff] and the court from using or citing a technical advice
memorandum as precedent.” (citing I.R.C. § 6110(j)(3) (codified as amended at I.R.C.
§ 6110(k)(3)))), and it definitely does not bind the government, see Estate of Smith v. United
States, 103 Fed. Cl. 533, 566 (2012) (“Memoranda may not be used as precedent and may not be
relied on for their substance, but may be used as an indication of IRS administrative practice.”
(citing Vons Cos. v. United States, 51 Fed. Cl. 1, 6-8, 12 (2001), abrogation on other grounds
recognized by Alpha 1, L.P. ex rel. Sands v. United States, 83 Fed. Cl. 279, 288 (2008))); Vons
Cos., 51 Fed. Cl. at 11 (“[General Counsel M]emoranda may be relevant in a refund suit as
indicating the IRS[’s] interpretation of its own regulations and procedures. However, in that
regard, such memoranda are entitled to no more weight or deference than any other informal
agency interpretation, including a position taken on brief.” (citing American Express Co. v.
United States, 62 F.3d 1376, 1382-83 (Fed. Cir. 2001)).


                                                 7
