
USCA1 Opinion

	




                                       UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  ____________________        No. 92-1983                                  CHARLES J. OROPALLO,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Charles J. Oropallo on brief pro se.            ___________________            Jeffrey  R.  Howard, United  States  Attorney,  James  A.  Bruton,            ___________________                             _________________        Acting  Assistant   Attorney  General,  Gary  R.   Allen,  Gilbert  S.                                                ________________   ___________        Rothenberg and Roger  E. Cole, Attorneys, Tax Division,  Department of        __________     ______________        Justice, on brief for appellees.                                 ____________________                                     May 24, 1993                                 ____________________                      Per Curiam.   The district court  dismissed Charles                      __________            Oropallo's  suit for a tax refund as untimely under 26 U.S.C.              6511(a).  We affirm.                                I.  Background                                    __________                      Charles  Oropallo worked  for the  Raytheon Service            Company  during  the 1983  calendar year.    In 1985,  he was            incarcerated.   Four years later the IRS informed him that he            had  not filed  any tax  returns since  1982.   Oropallo then            obtained his W-2 form  from Raytheon.  When he filled out his            1983 tax return, he discovered that he had overpaid his taxes            by  approximately $698.   He  filed his  return on  March 19,            1990, claiming that amount as a refund.  On May 23, 1990, the            IRS  mailed him  a notice  disallowing his  claim, explaining            that it  could not "refund or  credit tax that  was paid more            than 3  years before the filing  of the claim  . . . ."   The            notice also told Oropallo  that he could sue to  recover "any            tax . . . or other amounts for which this disallowance notice            is issued" by filing suit in the appropriate federal district            court  (or the U.S. Claims  Court) within two  years from the            mailing date of the notice.                        Oropallo filed  suit in  the district  court within            the two-year period described by the disallowance notice.  He            alleged   that   "extremely   mitigating    and   extenuating            circumstances"  explained his  failure to  file his  1983 tax            return  on  time.   First, he  had  believed that  a six-year            limitations period applied.   Second, in  March 1983, he  had            suffered carbon monoxide poisoning which  left him "extremely            incapacitated and unable to function competently  for several            years" and, for that reason, he had been "completely unaware"            that he  had not filed his  1983 tax return "and  had in fact            believed he had  timely filed said return."   Furthermore, he            had been in prison since 1985, prison authorities had impeded            his  legal efforts  on his  own behalf,  and although  he had            informed  the  U.S.  Post  Office of  address  changes  while            incarcerated, he  had not  received notice  that  he had  not            filed the 1983 return until mid-1989.                        Without  waiting  for  the  government's  brief,  a            magistrate-judge recommended dismissing Oropallo's complaint,            finding that the suit was untimely under 26 U.S.C.    7422(a)            and  6511(a) and  that  the court  therefore  had no  subject            matter  jurisdiction   over  the  suit  under   28  U.S.C.               1346(a)(1).    The   magistrate-judge  also  concluded   that            Oropallo's incarceration had not affected his ability to file            a  timely tax  return, since,  while incarcerated, he  had in            fact  filed the return in question.  Oropallo objected to the            magistrate-judge's  recommendations.    He  noted   that  the            magistrate-judge  had  not   considered  his  alleged  carbon            monoxide poisoning before concluding that his late filing was            not excused, and he  offered as an additional reason  for his            delay  the  fact  that his  ex-wife  had  taken  his tax  and            financial  records  in early  1984  and moved  to  an unknown                                         -4-                                          4            address.   Oropallo also argued that the IRS had consented to            his suit because the disallowance notice stated that he could            bring  suit within  two years  from the  mailing date  of the            letter and he had  done so.  The district  court subsequently            accepted the magistrate-judge's recommendation  and dismissed            Oropallo's suit.                      On appeal,  Oropallo alleges that the  dismissal of            his suit  violated his  constitutional rights under  both the            United States  and New Hampshire Constitutions.  He says that            dismissal of his  suit deprived him  of his property  without            due process of law and  of his right to access to  the courts            to seek redress  for his  grievances.  He  also claims  that,            given   the  circumstances   he  alleges,   the  statute   of            limitations   should  have   been  tolled.     Applying   the            limitations period to him, he argues, also violated his equal            protection rights under the Constitution since, as he claims,            the  IRS  can "reach  back" farther  in  time to  make claims            against  taxpayers  than taxpayers  can  to recover  refunds.            Finally,  Oropallo  asserts  that  the language  of  the  IRS            disallowance notice, stating that  he could bring suit within            two  years of  the mailing  date of  the notice,  constituted            consent to his suit and waived any limitations bar.     W   e            affirm for the reasons described below.                                         -5-                                          5                                     II.  Discussion                                          __________                      Since  the  statute  of limitations  and  equitable            tolling issues are at the heart of this case, we address them            first.                       A.  Equitable Tolling of Section 6511(a) and (b)                          ____________________________________________                      As the district court noted, 28 U.S.C.   1346(a)(1)            gives federal district courts jurisdiction over suits against            the United  States "for the recovery  of any internal-revenue            tax alleged to have been erroneously or illegally assessed or            collected."  Likewise, the  court correctly observed that the            jurisdictional grant  in section  1346(a)(1) must be  read to            incorporate  the requirements  of  26 U.S.C.     7422(a)  and            6511(a).   See United States  v. Dalm, 494  U.S. 596, 601-02,                       _________________     ____            608-10 (1990).                        Section  7422(a) provides  that no  suit for  a tax            refund may be maintained unless "a claim for refund or credit            has been  duly filed  with the  Secretary,  according to  the            provisions  of law in that regard, and the regulations of the            Secretary established in pursuance thereof."  Section 6511(a)            states that a refund claim must be filed "within 3 years from            the time  the return was filed  or 2 years from  the time the            tax was paid, whichever of such periods expires the later, or            if no return was filed  by the taxpayer, within 2  years from            the   time  the  tax  was   paid."    Thus,  section  6511(a)                                         -6-                                          6            distinguishes between taxpayers  who file  returns and  those            who do  not.  Taxpayers who  file returns have  the longer of            three  years from  the time  they filed  their return  or two            years from the time they paid their taxes to file a claim for            refund,  whereas taxpayers  who have  not filed  returns have            only two years  from the time they  paid their taxes to  file            their refund claims.   A  refund suit must  have been  timely            filed under one of the limitations periods in section 6511(a)            for the  district court to obtain jurisdiction over the suit.            Dalm, 494 U.S. at 609.              ____                      The  district  court did  not  explain clearly  how            Oropallo's  claim was  untimely under  section 6511(a).   Its            opinion  contained language  which would  support either  the            conclusion  that it  had applied  the three-year  limitations            period for  taxpayers filing returns  or that it  had applied            the shorter two-year limitations period for taxpayers who did            not  file returns.   The  government urges  us to  affirm the            district   court's  implicit   holding   that  the   two-year            limitations period for nonfiling  taxpayers applies and  that            Oropallo's  late  return is  not  a  "return" which  triggers            application of  the three-year limitations period.   Although            it acknowledges that  there is  a split in  authority on  the            question  whether  a return  filed after  its  due date  is a            "return"  within the  meaning  of section  6511(a),  compare,                                                                 ________            e.g.,  Musser v. Commissioner, 92-1  USTC   50,245 (D. Alaska            _____________    ____________                                         -7-                                          7            1991) (the two-year limitations period measured from the time            the tax  was  paid is  applicable  to taxpayers  filing  late            returns),  with Mills v. United States, 805 F. Supp. 448, 450                       ____ _____    _____________            (E.D. Tex. 1992) (the three-year limitations period beginning            when the return  is filed applies to a taxpayer filing a late            return), the government argues  that a finding that taxpayers            filing late returns have  only two years from the  time their            taxes are  paid  to file  refund claims  better reflects  the            statutory language.                        We need not resolve  this question in light  of our            determination  on the  tolling issue.    For purposes  of our            present  analysis,  therefore,  we  assume for  the  sake  of            argument  that  the cases  holding that  a  late return  is a            "return" within  the meaning of section  6511(a) are correct.            Accordingly, we also assume that, if Oropallo filed his claim            for a refund  within three  years of his  return, his  refund            claim  would be timely.   Under 26 C.F.R.    301.6402-3(a), a            return which claims a  refund may be considered a  "claim for            refund" under section 6511(a).   Oropallo's return, which was            filed  on March 19, 1990,  claimed a refund.   Therefore, the            claim, having been filed on the same day as his return, would            obviously have been filed within three years of the filing of            the return and so was timely.                        This assumption, however, does not mean victory for            Oropallo.    As the  government  says, section  6511(b)(2)(A)                                         -8-                                          8            places a cap  on recovery  of a refund  which, in  Oropallo's            case,  prevents recovery of any  taxes paid for  the 1983 tax            year.  Specifically, section 6511(b)(2)(A) states that,  with            respect to  a claim  filed  during the  three-year period  in            section  6511(a), the amount of the refund is limited to "the            portion  of  the  tax  paid within  the  period,  immediately            preceding the filing of the claim, equal to 3 years plus  the            period of  any  extension of  time  for filing  the  return."            Since  Oropallo filed  his claim  on March  19, 1990,  he may            recover only taxes paid in the preceding three years -- i.e.,            any  taxes  paid  on  or  after March  19,  1987.    (As  the            government notes,  Oropallo has not claimed  that he received            any extension  of time for filing his 1983 return.)  Under 26            U.S.C.    6513(b)(1),  Oropallo's taxes  were deemed  paid on            April 15, 1984,  well before  the cut-off date  of March  19,            1987.  Therefore,  he may  not recover any  portion of  those            taxes.                        Section  6511(b)(2)(A)  explicitly  forecloses  any            refund  for  taxes  not  paid within  the  three-year  period            preceding  the  date  the  claim was  filed.1    Essentially,                                            ____________________            1.  Thus, where the  taxes sought to be  recovered are deemed            paid as  of the date the return was due (and no extension for            filing the return was granted), a return such as  Oropallo's,            which  itself is the refund claim, must be filed within three            years of  its due date for the taxpayer to be able to recover            any  of the  taxes  paid.    Basically,  for  a  taxpayer  in            Oropallo's  situation,  section  6511(a) and  (b)(2)(A)  work            together  with  section  6513(b)(1)  to  impose  a three-year            statute of  limitations on  refund claims, measured  from the                                         -9-                                          9            therefore,  it establishes  an additional  limitations period            separate from the three-year period in section 6511(a).  See,                                                                     ____            e.g., Mills v.  United States,  805 F. Supp.  448, 450  (E.D.            ___________     _____________            Tex.  1992) (for  a  taxpayer who  has  filed a  return,  the            provisions of  section 6511(a)  and (b)(2)(A) establish  "two            limitations  hurdles" --  (1)  a refund  claim must  be filed            within three years after the tax return is filed, and (2) the            amounts sought to be recovered  must actually have been  paid            in the  three-year period preceding the filing of the claim).            That additional  limitations period effectively  bars some of            the refund claims which  would be unquestionably timely under            section 6511(a).   See, e.g.,  Rainey v. United  States, 82-2                               __________________    ______________            USTC    9442 (N.D. Ala.  1982) (the taxpayer's  claim was not            untimely  under  section 6511(a),  but  it  was denied  under            section  6511(b)(2)(A) because  the taxes  had not  been paid            within  the prescribed  period before  the claim  was filed);            McGregor  v. United States, 80-2  USTC   9647  (Ct. Cl. 1980)            ________     _____________            (same).    Accordingly,  unless  the  additional  limitations            period imposed  by section 6511(b)(2)(A) is equitably tolled,            Oropallo's action should be dismissed.                                              ____________________            original due date of  the tax return.   See Tallon v.  United                                                    __________     ______            States, 84-2  USTC   9926 (C.D. Ill.  1984) (after discussing            ______            the effect  of sections  6511(b)(2)(A) and 6513(b)(1)  on the            taxpayers'  timely refund  claim, which  was made  in a  late            return, the  court concluded  that "the Plaintiffs  have been            barred from recovering their refund by failure to  file their            returns within three years of the time they were due").                                          -10-                                          10                      2.  Equitable Tolling                          _________________                      Oropallo argues that the limitations  period should            be  tolled   "[i]n  the  interests  of   justice"  given  the            "extremely mitigating and  extenuating circumstances" of  his            case.    In  our  opinion,  only  Oropallo's  alleged  carbon            monoxide poisoning could  qualify for that characterization.2            The  government  interprets  Oropallo's  argument  to  be  an            attempt to invoke either the mitigation provisions of the tax            code,  26 U.S.C.      1311-14, or  the  judicial doctrine  of            equitable recoupment.   It correctly points  out that neither            the  mitigation  provisions  nor  the   equitable  recoupment            doctrine apply.   In view  of Oropallo's status  as a  pro se                                                                   ___ __            petitioner,  however, we  think we have  an obligation  to go            beyond the government's  brief and to take  account of recent                                            ____________________            2.  We assume that carbon monoxide  poisoning, which Oropallo            alleges  not only  incapacitated him  for several  years, but            also deprived  him of  his ability  to know that  he had  not            filed  a  1983  tax  return,  would  be analogous  to  mental            incapacity and  thus could be a ground  for equitable tolling            if  Oropallo  could  show  that  his  alleged  poisoning  had            actually prevented him from filing his 1983 return on time or            from remembering earlier than  1989 that he had not  done so.            See  Lopez v.  Citibank, N.A.,  808 F.2d  905, 907  (1st Cir.            __________     ______________            1987)  (assuming, in  a  suit between  private parties,  that            mental  illness   "might  sometimes   toll  the   statute  of            limitations," the court concluded that it did not do so where            the plaintiff was represented by counsel at the relevant time            and  so was not actually prevented from timely filing suit by            his mental illness).  The other grounds for equitable tolling            which  Oropallo alleges do not  appear to have  caused him to            delay filing his return, either  in 1983 or in 1989 after  he            learned that his  1983 return had  not been filed.   For that            reason, we  do not see how they could be found to excuse that            delay.                                           -11-                                          11            developments  in  the  law which  are  not  discussed by  the            government.                      Before 1990,  Oropallo would have had  no basis for            claiming that the limitations  periods in section 6511 should            be equitably  tolled.  Courts traditionally  have declined to            apply equitable  principles to  toll statutes  of limitations            against  the United  States, on  the theory  that  the United            States could  be sued  only by  virtue of  its waiver of  its            sovereign  immunity and that the terms of any such waiver had            to be strictly construed.   Irwin v. Veterans Administration,                                        _____    _______________________            498  U.S. 89,  111  S. Ct.  453,  458-59 (1990)  (White,  J.,            concurring); see, e.g,  United States v. Dalm,  494 U.S. 596,                         _________  _____________    ____            608 (1990).3  Therefore,  except in clearly unique situations            which do not  apply here, the limitations  periods in section            6511 have not  been equitably  tolled.  See,  e.g., Ellis  v.                                                    _________________            United States, 82-1 USTC    9214 (Ct. Cl. 1982)  ("[t]here is            _____________            nothing in any of the[] provisions [relating  to tax refunds]            that permits an exception to th[e] time limitation to be made                                            ____________________            3.  In addition, tax laws have been viewed as  technical laws            which are not subject  to general principles of equity.   See                                                                      ___            Lewyt Corporation v. Commissioner,  349 U.S. 237, 249 (1955);            _________________    ____________            Ewing  v. United States, 914  F.2d 499, 501  (4th Cir. 1990),            _____     _____________            cert. denied, 111 S. Ct.  1683 (1991).  Consequently,  courts            ____________            have   required  strict   adherence  to   the  administrative            prerequisites set out in the Internal Revenue Code, including            the explicit and clearly  stated limitations periods at issue            here.   See Dalm, 494 U.S. at  608-10; In re Graham, 981 F.2d                    ________                       ____________            1135, 1138 (10th Cir. 1992); Bruno v. United States, 547 F.2d                                         _____    _____________            71,  73-74 (8th Cir. 1976); Dixon v. United States, 85-1 USTC                                        _____    _____________              9173 (Cl. Ct. 1985).                                           -12-                                          12            because of the illness of the taxpayer or his family or other            extenuating circumstances"); Stepka v. United States,  196 F.                                         ______    _____________            Supp. 184,  185 (E.D.N.Y.  1961) (the statute  of limitations            relating to  refund claims  under  the pre-1954  tax code  is            "inflexible"  and  so not  tolled  by  the taxpayer's  mental            incompetency; there are only  "rare exceptions" to the "rigid            prevailing rule[] that such statutes of limitations cannot be            extended in any circumstances," e.g., the prisoner  of war or            fraud situation); contrast, e.g., Daney v. United States, 247                              _______________ _____    _____________            F. Supp. 533, 535 (D. Kan. 1965) (the court permitted tolling            of the limitations period on a refund claim by a noncompetent            restricted Indian because the general rules of tax law do not            apply "in a strict manner" to restricted Indians), aff'd, 370                                                               _____            F.2d 791 (10th Cir. 1966).                       In Irwin v.  Veterans Administration, 498 U.S.  89,                         _____     _______________________            111 S. Ct. 453 (1990), however, the Supreme Court changed its            approach to the issue of  equitable tolling in suits  against            the government, holding that "the same rebuttable presumption            of  equitable  tolling  applicable to  suits  against private            defendants  should also  apply  to suits  against the  United            States."    Id.  at 457.4    In  reliance  on Irwin,  several                        ___                               _____                                            ____________________            4.  Although the Court's  opinion presents some  interpretive            difficulties,  it  would  seem  to  have  overruled  or  made            irrelevant prior case law which sought to determine whether a            particular limitations period could be tolled  by determining            whether the time limit was jurisdictional or not.  See, e.g.,                                                               __________            Soriano v. United  States, 352 U.S. 270, 276  (1957) (holding            _______    ______________            that a limitations period on claims against the United States                                         -13-                                          13            federal district courts  have permitted equitable tolling  of            the  limitations period  in section  6511(a) or  (b)(2)(A) in            view of  a taxpayer's  argument that mental  incompetence had            kept him  or her  from  timely filing  a refund  claim.   See                                                                      ___            Wiltgen v. United  States, -- F. Supp. --, 93-1 USTC   50,044            _______    ______________            (N.D.  Iowa 1992)  (section 6511(b)(2)(A));  Scott v.  United                                                         _____     ______            States,  795 F.  Supp. 1028  (D. Hawaii  1992)  (stating that            ______            equitable tolling  of section 6511(a) was  at issue, although            the facts indicate that section 6511(b)(2)(A) could have been            involved as well); Johnsen v. United States, 758 F. Supp. 834                               _______    _____________            (E.D.N.Y. 1991) (section 6511(b)(2)(A)).5  In  our view,  the                                            ____________________            contained  in  the statute  granting  jurisdiction  over such            claims could not be tolled); see Irwin, 111  S. Ct. at 458-59                                         _________            (White, J., concurring) (establishing a presumption  in favor            of equitable tolling against  the government was inconsistent            with   the  Court's  traditional   approach  and  essentially            overruled  Soriano).   The key  issue is  still Congressional                       _______            intent, but, by creating a presumption in favor  of equitable            tolling,  the Court has squarely placed on the government the            burden of  showing that  a particular limitations  period may            not be equitably tolled.   Cf. Schmidt v. United  States, 933                                       ___ _______    ______________            F.2d 639, 640 (8th Cir. 1991) (in an action under the Federal            Tort Claims Act after Irwin, the government has the burden of                                  _____            establishing  the statute  of limitations  as an  affirmative            defense).             5.   But see Vintilla v. United States, 931 F.2d 1444, 1447 &                         ________    _____________            n.1 (11th Cir.  1991), in which the  court adhered to a  pre-            Irwin mode of analysis and  ruled that the limitations period            _____            in section 6511(a) may not  be equitably tolled since  timely            filing of a refund claim is a jurisdictional prerequisite  to            suit.  In  Vintilla, the  taxpayer had been  required to  pay                       ________            upfront the entire  tax due on his  severance benefit whereas            similarly situated  taxpayers paid taxes as  if receiving the            benefit  in installments.  The IRS had told the taxpayer that            a  refund claim could be filed after he litigated the mode of            payment of  the severance  benefit; after the  litigation had                                         -14-                                          14            relevant analysis has been altered yet again by a more recent            Supreme Court decision.   In Lampf, Pleva, Lipkind,  Prupis &                                         ________________________________            Petigrow v. Gilbertson, --  U.S. --, 111 S. Ct.  2773 (1991),            ________    __________            the  Supreme  Court considered  whether  to  adopt a  federal            limitations period  in private  suits under section  10(b) of            the  Securities Exchange Act of 1934 and, if so, whether that            period would  be subject  to equitable  tolling.6  The  Court            concluded  that  a  federal  limitations   period  should  be            adopted.   It selected  the 1-and-3-year  limitations periods            contained  in  the  1934 Act  and  in  the original  remedial                                            ____________________            ended,  however,  the  IRS  denied the  taxpayer's  claim  as            untimely.            6.  Although  Lampf  involved   a  lawsuit  between   private                          _____            parties, it is clearly  relevant here.  As the  Supreme Court            stated  in  Irwin,  equitable  tolling  principles  in  suits                        _____            against  the  government  should  be  consistent  with  those            applied  against private  defendants, and should  be employed            "no  more  favorabl[y]" against  the government  than against            private defendants.  Irwin, 111 S. Ct. at 457, 458.                                   _____                 Nor do  we think that  Lampf is inapplicable  because it                                        _____            considered a statute of  limitations applicable to bringing a            lawsuit rather than time  limits imposed on the filing  of an            administrative claim.  If  a specific equitable consideration            would justify tolling the limitations period for filing suit,            that same equitable consideration should  justify tolling the            administrative  time  limits  which  have  been  held  to  be            prerequisites  to  bringing  suit.   See  Johnsen  v.  United                                                 ____________      ______            States,  758 F. Supp. 834, 835 n.1 (E.D.N.Y. 1991) ("the same            ______            equitable considerations  are involved in  both judicial  and            administrative  procedural  defaults"  and  so  a distinction            between   the  equitable  tolling  of  judicial  actions  and            administrative exhaustion requirements cannot "reasonably" be            drawn); Zipes  v. Trans World  Airlines, Inc., 455  U.S. 385,                    _____     ___________________________            388-89  &  n.2,  393  (1982)  (deciding that  a  "statute  of            limitations"  requiring that  a charge  of discrimination  be            filed  with the EEOC within  90 days of  the alleged unlawful            employment practice could be equitably tolled).                                           -15-                                          15            provisions  of  the Securities  Act of  1933, as  typified by            section 9(e) of the  1934 Act.  See 111 S.  Ct. at 2781, 2782                                            ___            n.9.                        Section 9(e) prohibits  any action for  a violation            of  the section  if not  brought "within  one year  after the            discovery of the facts  constituting the violation and within            three  years after such violation."  Id. at 2780 n.6 (quoting                                                 ___            15  U.S.C.   78i(e)).   Citing Irwin,  the Court acknowledged                                           _____            that time  limits in law  suits are "customarily"  subject to            equitable  tolling.  It also agreed that, in fraud cases, the            limitations period  does not usually begin  running until the            fraud is discovered.  Nevertheless,  the Court held that time            limits,  expressed as  in section 9(e),  were not  subject to            equitable tolling.  In the Court's view, it was "evident that            the equitable tolling  doctrine is fundamentally inconsistent            with the 1-and-3-year structure."  Id. at 2782.  It explained                                               ___            what it meant as follows:                      The 1-year  period,  by  its  terms,  begins  after                      discovery of the facts constituting  the violation,                      making tolling unnecessary.   The 3-year limit is a                      period of  repose inconsistent with tolling.  . . .                      "[T]he inclusion of the  three-year period can have                      no  significance  in  this  context  other  than to                      impose  an  outside  limit."  (Citations  omitted.)                      Because the  purpose of  the  3-year limitation  is                      clearly to serve as a cutoff, we hold that  tolling                      principles do not apply to that period.            Id.            ___                      We  think that  section 6511(a)  and (b)(2)(A)  are            structured like the 1-and-3-period considered  by the Supreme                                         -16-                                          16            Court in Lampf.  Under section 6511, a taxpayer who has filed                     _____            a return must clear two  time barriers.  The first one  is in            section 6511(a),  which requires  taxpayers to file  a refund            claim within three years of filing a return.  We have assumed            that a return can be filed at any time after its due date and            still be a return for purposes of  filing a claim within that            three-year   period.     Under   that   interpretation,   the            limitations period in  section 6511(a)  is totally  illusory.            See,  e.g.,  Mills  v. United States,  805 F.  Supp. 448, 451            ____________ _____     _____________            (E.D. Tex. 1992) (section 6511(a) would "permit a taxpayer to            file a tax  return 40 years late and still  have 3 additional            years  in which  to  file a  claim  for  refund").   In  this            respect,  the   three-year  period  in  section   6511(a)  is            analogous to  the one-year  period discussed  in Lampf.   The                                                             _____            one-year  period requires only that suit  be filed within one            year  after discovery  of the  facts which  give rise  to the            cause  of action.  Since  the discovery of  those facts could            occur any number of  years after the statutory violation  had            actually taken place, the 1-year period sets no real limit on            when suit can be brought.                        The  analogy  between  the  limitations  period  in            section  6511(a) and  the 1-year  period typified  by section            9(e)  extends even  further.   In  Lampf,  the Supreme  Court                                               _____            commented  that the  one-year  period for  filing suit  after            discovery of the  facts giving  rise to the  cause of  action                                         -17-                                          17            made  tolling unnecessary.  Lampf, 111  S. Ct. at 2782.  What                                        _____            the  Court obviously meant was that once someone who has been            defrauded knows  the relevant facts, the  1-year period gives            that  person ample time in which to  sue and there is no need            to  toll the 1-year limitations  period.  A  similar state of            knowledge respecting the right to a refund can  be attributed            to  individual calendar  year taxpayers  who file  income tax            returns.   The return contains all  the information necessary            to verify that  there has  been an overpayment  of taxes  and            that  a refund is due.  Accordingly, the three-year period in            section 6511(a)  gives  the taxpayer  ample  time to  file  a            refund claim, and there is no need to toll that period.                      Essentially, then, section 6511(a) serves simply to            identify which taxpayers have properly  positioned themselves            to  obtain  a  refund.   Like  the  1-year  period in  Lampf,                                                                   _____            however,  it  does  not  describe which  of  those  potential            claimants  will actually  succeed  in pursuing  their rights.            That  task   is  left   to   section  6511(b)(2)(A),   which,            significantly,   the  tax   code  characterizes   not   as  a            limitations period, but as a "limit on [the] amount of credit            or  refund."  See 26  U.S.C.   6511(b)(2)(A)  (caption).7  As                          ___                                            ____________________            7.  Section 6511(b)(2)(A) works together with section 6511(a)            and section 6513(b)(1) to  bar recovery of any refund  claims            on  late returns not filed  within three years  after the due            date  of  the return,  and thus  it  clearly operates  like a            statute of limitations.  However, Congress's characterization            of section  6511(b)(2)(A)  as a  "limit  on [the]  amount  of            credit  or  refund"  rather  than  as  a  limitations  period                                         -18-                                          18            we  said  earlier, section  6511(b)(2)(A)  limits  the refund            recoverable to  the  amount of  tax  paid in  the  three-year            period immediately preceding the filing of the claim.  For an            individual   calendar  year  taxpayer  like  Oropallo,  taxes            withheld  from wages during the  tax year are  deemed paid on            April  15th  of the  following year,  the  date when  the tax            return is due.  See 26 U.S.C.   6513(b)(1).  For that reason,                            ___            if the  return is not filed and the claim not made within the            three   years  immediately   following  that   date,  section            6511(b)(2)(A)  precludes the  recovery  of any  of the  taxes            paid.                       Here,  Oropallo's 1983  taxes were  deemed  paid on            April  15, 1984,  and his  refund claim  was timely  filed on            March 19,  1990, the  same day  he filed  his return.   Under            section 6511(b)(2)(A)  he may recover  any taxes paid  in the            immediately  preceding three-year period,  i.e., on  or after            March  19,  1987.   But all  of the  taxes Oropallo  seeks to            recover were paid before March 19, 1987, and thus he recovers            nothing.    Unquestionably,  then,  that date  serves  as  an            absolute  cut-off point.   By imposing an  "outside limit" or            "cut-off"  on the  amount of  taxes which  can be  recovered,            section 6511(b)(2)(A) operates like the three-year portion of            the limitations period  in Lampf,  and thus is  a "period  of                                       _____                                            ____________________            indicates more clearly than a simple limitations period would            that Congress intended  to establish an outside limit  on the            recovery of refunds.                                           -19-                                          19            repose inconsistent with tolling".   See 111 S. Ct.  at 2782.                                                 ___            See  Wiltgen v.  United States, --  F. Supp. --,  93-1 USTC              ____________     _____________            50,044  (N.D. Iowa  1992)  (calling section  6511(b)(2)(A)  a            "period of repose," but,  without referring to Lampf, finding                                                           _____            that  the section  could  be equitably  tolled under  Irwin);                                                                  _____            McGregor  v. United States, 80-2  USTC   9647  (Ct. Cl. 1980)            ________     _____________            (calling the date beginning the three-year period immediately            preceding  the date of  a refund  claim the  "cut-off date").            Because,  together, section  6511(a)  and (b)(2)(A)  function            like   the  1-and-3-year   period  found   inconsistent  with            equitable tolling in Lampf, we conclude that those provisions                                 _____            may not be equitably tolled.                      B.  Remaining Claims                          ________________                      Oropallo's  remaining claims are  without merit for            the  reasons stated in the government's brief.  We comment on            several claims only.                            At the  heart of  Oropallo's due process  claims is            the  contention that  he  should have  been  given a  hearing            before his refund  claim was denied  and his suit  dismissed.            The short answer is that  an administrative hearing would not            have changed  the outcome for  Oropallo.  The  critical facts            relating  to  the date  Oropallo's  taxes were  paid  and his                                         -20-                                          20            refund claim filed are not disputed.  In view of those facts,            section  6511 unquestionably bars  Oropallo's recovery of any            portion of his 1983  taxes.  Furthermore, it is  well settled            that post-collection judicial  review accords a  taxpayer all            the process that is due under our tax laws.  Martinez v. IRS,                                                         ________    ___            744 F.2d 71, 72 (10th Cir. 1984); Rosenberg  v. Commissioner,                                              _________     ____________            450 F.2d 529, 533  (10th Cir. 1971) ("[d]ue process  does not            require a hearing at  the initial stage or at  any particular            point of  an administrative proceeding"); cf.  Kahn v. United                                                      ___  ____    ______            States, 753 F.2d 1208,  1218-19 (3d Cir. 1985)  (stating that            ______            the   principle  that  post-collection   judicial  review  is            constitutionally sufficient does not  apply where a  taxpayer            has to  pay part of a  disputed penalty before  being able to            seek  judicial review,  the  court  weighed the  government's            interests against  the taxpayer's, but  concluded nonetheless            that   no   pre-collection   hearing   was   constitutionally            required).   Both  this court  and  the district  court  have            reviewed the IRS's denial of Oropallo's refund claim and have            issued opinions  explaining that his claim  is barred because            it was  untimely.   Thus,  Oropallo  has received  the  post-            collection judicial review to which he was entitled.  Second,            Oropallo argues that the  disallowance notice and various IRS            publications   referring  to  a   two-year  period  for  suit            constituted governmental consent to his suit which waived the            time bar.   This argument fails to appreciate the distinction                                         -21-                                          21            between  a  taxpayer's right  to  bring a  lawsuit  to review            administrative action and the taxpayer's  separate obligation            to pursue  first the administrative  procedures prescribed in            the  tax code.   Section 6532(a)(1)  of the  Internal Revenue            Code contains  the two-year  limitations period in  question.            It  requires a  taxpayer  suing for  a  refund under  section            7422(a) to bring suit within two years after the mailing date            of a disallowance  notice.   As is evident  from the  record,            Oropallo  complied  with  that  requirement.     But  section            6532(a)(1) regulates only  the time  for bringing  a suit  to            review  the denial of an administrative claim.  The Code also            imposes certain administrative requirements respecting refund            claims  which  Oropallo  was   required  to  follow.    Those            administrative requirements are contained in sections 7422(a)            and 6511, see Rosenbluth Trading, Inc. v. United  States, 736                      ____________________________    ______________            F.2d 43, 45 n.1 (2d Cir. 1984), and have been discussed fully            in this opinion.   Thus, Oropallo is right in saying  that he            complied  with  the  two-year   period  referred  to  in  the            disallowance notice,  but that  notice could not  have waived            his separate obligation to pursue his administrative remedies            in  a timely  fashion.   See Allen v.  United States,  439 F.                                     _________     _____________            Supp.  463,  465  (C.D.  Cal.  1977)  (a  notice  disallowing            taxpayer's  refund  claim  as  untimely  did  not  waive  the            government's  limitations defense  under  section 6511(a)  by            stating that the  taxpayer had  two years in  which to  bring                                         -22-                                          22            suit, but "merely . . . notif[ied] the Plaintiff of his right            to   contest   the   government's   interpretation   of   the            applicability of the statute of limitations").                      Finally,  Oropallo claims that his equal protection            rights  have been  violated because  the IRS  can reach  back            farther in time  to collect taxes  than he  can to collect  a            refund.  We think that Oropallo would be hard-pressed to show            that he and the IRS are similarly situated parties in the tax            collection context  so as  to make equal  protection analysis            applicable.   Cf. Musser v. United States, 92-1 USTC   50,245                          __________    _____________            (D. Alaska 1991) (it is not discriminatory for the government            to have a longer period to sue for recovery  of erroneous tax            refunds  than a taxpayer is allowed to sue for overpayment of            taxes  since the IRS deals  with millions of  tax returns per            year while a  taxpayer typically  has only one  return to  be            concerned about each  year).  In any  event, we find  no such            violation here.  As the  government observes, in one  respect            Oropallo's claim  is factually wrong.   Just as  the taxpayer            has three  years from the date  of filing a return  to file a            refund  claim, so  the  government generally  has only  three            years  from the date a  return is filed  to make a deficiency            assessment.    See  26 U.S.C.     6501(a).    As our  opinion                           ___            explains,  however, section  6511(a) and  (b)(2)(A), together            with section 6513(b)(1), effectively  impose on a taxpayer in            Oropallo's  situation  an  additional,   absolute  three-year                                         -23-                                          23            limitations period  on refund  claims beginning the  date the            return was due.  The government does not appear to be subject            to  that   limitations  period  in   assessing  deficiencies.            Nevertheless,  the  apparent  disparate  treatment  does  not            violate Oropallo's constitutional rights.   It seems  obvious            to  us that,  if  the  government  were  held  to  that  same            additional limitations  period, any taxpayer could  (and many            might)  prevent  the   government  from   ever  assessing   a            deficiency  merely by  waiting to  file a return  until three            years after its  due date,  an outcome  that would  seriously            undermine the collection of taxes.                        The judgment of the district court is affirmed.                                                            ________                                         -24-                                          24
