Boeri v. United States

United States Court of Appeals
for the Federal Circuit
______________________

MARIO BOERI,
Plaintiff-Appellant,

v.

UNITED STATES,
Defendant-Appellee.
______________________

2012-5102
______________________

Appeal from the United States Court of Federal
Claims in No. 11-CV-590, Judge Nancy B. Firestone.
______________________

Decided: July 31, 2013
______________________

MARIO BOERI, of Columbia, South Carolina, pro se.

JANET A. BRADLEY, Attorney, Appellate Section, Tax
Division, United States Department of Justice, of Wash-
ington, DC, for defendant-appellee. With her on the brief
were KATHRYN KENEALLY, Assistant Attorney General, and
MICHAEL J. HAUNGS, Attorney.
______________________

Before NEWMAN, CLEVENGER, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER.
2 MARIO BOERI v. US
Dissenting opinion filed by Circuit Judge NEWMAN.
CLEVENGER, Circuit Judge.
Mario Boeri appeals the judgment of the United
States Court of Federal Claims (“Claims Court”), dismiss-
ing his complaint for a refund of taxes that were withheld
by his employer. Boeri v. United States, No. 11–590T,
2012 WL 643901 (Fed. Cl. Feb. 23, 2012). We affirm.
I
Mr. Boeri is a citizen of Italy, and has never lived or
worked in the United States. He was employed by the
Verizon Corporation and its predecessor GTE, in Italy for
11 years, Brazil for 5 years, Argentina for 5 years, and the
Dominican Republic for 15 years.
In November 2003 Mr. Boeri chose to participate in
Verizon’s Management Voluntary Separation Plan, and in
accordance with the Plan, he was awarded a gross separa-
tion payment of $247,177 in 2004. Over two distributions
in March and August 2004, Verizon withheld a total of
$70,559, including United States income tax withholding,
Social Security tax, and Medicare tax, even though Mr.
Boeri had no apparent U.S. tax liability because he never
lived or worked in the United States.
On March 10, 2009 Mr. Boeri filed a nonresident alien
income tax return for the 2004 tax year, seeking a refund
from the Internal Revenue Service (“IRS”) of all the taxes
withheld by Verizon. The IRS denied Mr. Boeri’s request
for a refund on the grounds that it should have been
requested within three years of April 15, 2005. See Letter
from IRS to Mario Boeri (Sept. 14, 2009) (“You filed your
original tax return more than 3 years after the due date.
Your tax return showed an overpayment. To claim that
overpayment as a credit or to obtain a refund, you have to
file your tax return within 3 years from its due date.”).
The IRS Appeals Office on July 20, 2011 denied Mr.
Boeri’s administrative appeal.
MARIO BOERI v. US 3
Mr. Boeri then appealed to the Claims Court, stating
that the three-year period does not apply, for he is not
seeking a refund of a tax overpayment, but correction of
an erroneous withholding. He argued that he did not file
a United States income tax return for the 2004 tax year
until 2009, and that these circumstances are not within
the scope of the three-year look-back provision of 26
U.S.C. § 6511(b)(2)(A).
The Claims Court held that Mr. Boeri cannot recover
the withheld funds because his request was not made
within the three-year period of § 6511(b)(2)(A) (“Limit on
amount of credit or refund”). The Supreme Court calls
this three-year provision a “look-back,” Commissioner of
Internal Revenue v. Lundy, 516 U.S. 235, 240 (1996),
explaining that it is not a “statutory time . . . limitation[]”
but rather a “substantive limitation[] on the amount of
recovery.” United States v. Brockamp, 519 U.S. 347, 348,
352 (1997). The Claims Court recognized that the look-
back provision is not “jurisdictional in nature” and did
“not preclude the court from hearing [Mr. Boeri’s] claim.”
Boeri, 2012 WL 643901, at *3 (citing Murdock v. United
States, 103 Fed. Cl. 389 (Fed. Cl. 2012)).
The Claims Court then dismissed Mr. Boeri’s suit for
failure to state a claim upon which relief could be granted.
The court stated that “Sections 6513(b)(1) and (c)(2)
specify when advance payments of income tax and social
security and Medicare taxes are deemed paid,” and that
“[u]nder these provisions, the advanced payments paid by
Verizon in 2004 for which [Mr. Boeri] seeks a refund are
deemed paid on April 15, 2005.” Boeri, 2012 WL 643901,
at *4. Because Mr. Boeri did not seek a refund within
three years of the “deemed paid” date calculated pursuant
to § 6513(b)(1), the court held that § 6511(b)(2)(A) barred
his claim for relief.
4 MARIO BOERI v. US
II
We exercise plenary review of a dismissal for failure
to state a claim for relief. Cambridge v. United States,
558 F.3d 1331, 1334-35 (Fed. Cir. 2009).
We see no reversible error in the Claims Court’s anal-
ysis. Sections 6511(a) and 6511(b)(1) require that a tax-
payer bring a refund claim within three years of filing a
return, regardless of the return’s actual due date. When
Mr. Boeri filed his 2004 return on March 10, 2009, he
accomplished this step; his return was also his refund
claim.1 However, the “look-back” provisions of § 6511(b)(2)
limit the refund available to the plaintiff to taxes paid
within the applicable look-back period. Here, the applica-
ble period is the 3-year period immediately preceding the
filing of the March 2009 refund claim. See § 6511(b)(2)(A);
VanCannangan v. United States, 231 F.3d 1349, 1351
(Fed. Cir. 2000).
To determine when Mr. Boeri’s 2004 withholdings
were “deemed paid”—and thus to establish whether they
are within the 3-year period—we turn to § 6513 (“Time
return deemed filed and tax considered paid”). Sections
6513(b)(1) and (c)(2) specify when advance payments of
income tax, and social security and Medicare taxes are
deemed paid. Under § 6513(b)(1), “[a]ny tax actually
deducted and withheld at the source during any calendar
year under chapter 24 shall, in respect of the recipient of
the income, be deemed to have been paid by him on [April
15th] following the close of his taxable year . . . .”

1 The correct way to achieve a refund of money to
which the IRS is not entitled is to file a return showing
overpayment and a like refund amount. The IRS had no
way to know that Mr. Boeri’s compensation was earned
outside the United States.
MARIO BOERI v. US 5
The taxes in dispute here were withheld by Verizon in
March and August 2004. The Claims Court assumed,
without challenge from Mr. Boeri, that Verizon had
effected its withholding under chapter 24. Thus, Mr.
Boeri’s taxes were deemed paid on April 15th, 2005,
eleven months prior to the start of the look-back period on
March 10, 2006. The Claims Court dismissed Mr. Boeri’s
complaint for failure to state a claim for relief, because
there were no taxes paid within his 3-year look-back
period.
There is however some question as to whether Mr.
Boeri’s taxes were withheld under chapter 24 of the
Internal Revenue Code (“Collection of Income Tax at
Source on Wages”), or if they were withheld under chapter
3 of the code (“Withholding of Tax on Nonresident Aliens
and Foreign Corporations”).2 If Mr. Boeri’s taxes were
withheld under chapter 3, then § 6513(b)(1) would be
inapplicable.
Although the IRS appears to have assumed from the
beginning that Mr. Boeri’s taxes were withheld under
chapter 24, see Sept. 14, 2009 Letter to Mr. Boeri (stating
taxes were deemed paid on April 15, 2005), the govern-
ment indicated below that Mr. Boeri’s taxes may have
been withheld under chapter 3. See Government’s Reply
Brief in Support of its Motion to Dismiss at 3, n.1 (“It
appears that Verizon withheld tax on the distributions
(paid from within the United States) to plaintiff, a nonres-
ident alien, pursuant to § 1441 [of chapter 3].”) (emphasis
added). The government recognized, however, that “the
legal basis for Verizon’s withholding is irrelevant to the
disposition of the . . . issues here.” Id.

2 Mr. Boeri does not argue for relief on the ground
that his taxes were withheld under chapter 3, not chapter
24. We address this question to be sure that withholding
under chapter 3 cannot afford Mr. Boeri relief.
6 MARIO BOERI v. US
The government is correct. While § 6513(b)(1) is lim-
ited to taxes withheld under chapter 24, § 6513(b)(3)
applies to taxes withheld under chapter 3. Subsection
(b)(3) deems taxes as paid on “the last day prescribed for
filing the return under section 6012 for the taxable
year . . . .” Section 6012 dictates “[p]ersons required to
make returns of income.” Under the applicable regula-
tions, Mr. Boeri was indeed required to file a 2004 tax
return in order to claim a refund. See 26 C.F.R. § 1.6012-
1(b)(2)(i) (stating that the regulation excepting a nonresi-
dent alien not engaged in trade or business with United
States from filing a return does not apply “to a nonresi-
dent alien making a claim . . . for the refund of an over-
payment of tax for the taxable year”).
The deadline for filing such a return is found in
§ 6072 (“Time for filing income tax returns”). The subsec-
tion applicable to Mr. Boeri, a nonresident alien, estab-
lishes a timely filing deadline of June 15th of the
following calendar year. § 6072(c) (“Returns made by
nonresident alien individuals (other than those whose
wages are subject to withholding under chapter
24) . . . under section 6012 on the basis of a calendar year
shall be filed on or before the 15th day of June following
the close of the calendar year . . . .”). Applying the June
15th deadline to Mr. Boeri’s case, his taxes were deemed
paid on June 15th, 2005. § 6513(b)(3). This still places the
withheld taxes outside the 3-year look-back period, alt-
hough now only by nine months.
III
Mr. Boeri’s claim for a refund fails because his taxes
were deemed paid more than three years prior to the
filing of his refund request. § 6511(b)(2)(A). It makes no
difference whether his taxes were withheld under chapter
3 or chapter 24 to the outcome of this case. If the Claims
Court erred in thinking that Verizon withheld taxes
under chapter 24, the error is harmless. Mr. Boeri’s claim
MARIO BOERI v. US 7
to a refund also fails if Verizon actually withheld taxes
under chapter 3. The judgment of the Claims Court
granting the government’s motion to dismiss for failure to
state a claim is affirmed.3

3 Mr. Boeri’s Certified Public Accountant, Harry A.
Davis, to whom Mr. Boeri granted a power of attorney for
dealing with the IRS, explained on the record what hap-
pened here. On March 6, 2009, Mr. Boeri retained Mr.
Davis for assistance “after several discouraging years of
believing there was nothing he could do” to recoup the
money Verizon had withheld. Mr. Boeri’s tax return
seeking refund of $70,559 is dated March 10, 2009, and
was received by the IRS on March 28, 2009. Accompany-
ing the tax return was a March 26, 2009, letter from Mr.
Davis to the IRS requesting a waiver of the three-year
time limit for filing the return. Mr. Davis explained that
Mr. Boeri had “begun efforts to recover the improperly
withheld funds from his pension distribution, as early as
September 15, 2004,” by filing an ERISA claim, which
was unsuccessful. As a foreign person unfamiliar with the
“IRS tax filing system,” Mr. Davis argued that Mr. Boeri
should be relieved from the three-year time limit for filing
his refund return. The request for a waiver was not
granted, and Mr. Boeri’s appeal here does not challenge
the denial of the waiver request.
It is indeed unfortunate that Mr. Boeri, having long
known that Verizon withheld a significant amount from
his pension entitlement, did not turn to Mr. Davis sooner,
as had some of his colleagues who met with success in Mr.
Davis’s hands. But the law is the law, and there can be no
doubt that Mr. Boeri filed his refund request too late. So
far as the record here shows, Verizon was wrong to with-
hold $70,559, and Mr. Boeri made a mistake by not pursu-
ing the IRS sooner. But the IRS cannot be faulted for
applying the look-back law correctly. Relief from the law
by way of a waiver was sought but not obtained, presum-
8 MARIO BOERI v. US
AFFIRMED
COSTS
No costs.

ably because the Supreme Court has held that the re-
strictions set forth in § 6511 for filing tax refund claims
cannot be tolled for equitable reasons. See United States
v. Brockamp, 519 U.S. 347, 348 (1997). “Tax law, after all,
is not normally characterized by case-specific exceptions
reflecting individualized equities.” Id. at 352.
 United States Court of Appeals
for the Federal Circuit
______________________

MARIO BOERI,
Plaintiff-Appellant,

v.

UNITED STATES,
Defendant-Appellee.
______________________

2012-5102
______________________

Appeal from the United States Court of Federal
Claims in No. 11-CV-590, Judge Nancy B. Firestone.
______________________

NEWMAN, Circuit Judge, dissenting.
In the course of fulfilling the judicial obligation, there
are occasions where a court can casually reach the unjust
result, or can with a bit of thought reach the just result.
“Literal interpretation of statutes at the expense of the
reason of the law and producing absurd consequences or
flagrant injustice has frequently been condemned.”
Sorrells v. United States, 287 U.S. 435, 446 (1932). Here,
the court strains to reach the unjust result, through
casual statutory interpretation that mocks the reason of
the law. I respectfully dissent.
As certified by Verizon, Mario Boeri, a citizen of Italy,
“never worked in the United States of America during any
of his 36 years of service.” He was employed by Verizon or
its predecessor GTE in Italy, Brazil, Argentina, and the
2 MARIO BOERI v. US
Dominican Republic. Mr. Boeri had no income or Medi-
care or Social Security tax obligation to the United States.
Yet Verizon withheld $70,559 of Mr. Boeri’s separation
payment on his retirement from employment in the
Dominican Republic. The withholding included United
States income tax, Social Security tax, and Medicare tax;
it is undisputed that Mr. Boeri was not liable for these
taxes. Verizon sent the total withheld amount to the IRS,
identified as paid on behalf of Mr. Boeri. Mr. Boeri had
no Social Security number or other tax identification
number.
On March 10, 2009 Mr. Boeri requested from the IRS
a refund of this erroneous payment. The request was
made on IRS Form 1040NR, and was accompanied by IRS
Form 4852 entitled “Substitute for Form W-2 . . . or Form
1099-R.” Mr. Boeri states that this form was used be-
cause he “was never issued a Year-End Statement with
which to file a U.S. income tax return.”
The record contains an official IRS transcript that
shows a “refundable credit” to Mr. Boeri in the amount of
$70,559, dated 04-15-2005. No refund was made of this
credit, and no notice was sent to Mr. Boeri of this credit.
On Mr. Boeri’s refund request, the IRS refused to refund
this “refundable credit” on the ground that it should have
been requested within three years of April 15, 2005. In
denying Mr. Boeri’s administrative appeal, the IRS Ap-
peals Office stated, without further explanation, that
“[b]ased on the information submitted, there is no basis to
allow any part of your claim.” Letter from IRS Appeals
Office to Mario Boeri (July 20, 2011).
Verizon wrongfully dispensed Mr. Boeri’s money to
the IRS. The IRS wrongfully retained that money, with-
out providing notification of the error as set forth in the
agency’s own regulations. See IRS Pub. No. 1281, Backup
Withholding for Missing and Incorrect Name/TIN(s)
(2011):
MARIO BOERI v. US 3
Q. How do I know if a TIN [taxpayer identification
number] on my account is incorrect?
A. After the submission of Form 1099 information
returns, the IRS will send you a CP2100 or a
CP2100A Notice and a listing of incorrect
Name/TIN(s) reported on those forms.
Frequently Asked Questions, at 5. The law readily ac-
commodates Mr. Boeri’s request for return of the funds
that the Internal Revenue Service had recorded as his
money, although the IRS was remiss in failing to notify
him of any error as explained in the above Frequently
Asked Question.
As recognized by my colleagues, the three-year look-
back provision is neither a “statutory time limitation,”
United States v. Brockamp, 519 U.S. 347, 348 (1997), nor
a jurisdictional bar to recovery, Murdock v. United States,
103 Fed. Cl. 389, 392–94 (Fed. Cl. 2012). Mr. Boeri’s
money was sent to the IRS in error; notification should
have been made and the funds returned, or at least some
verification should have been sought. Instead, my col-
leagues hold that the IRS need not return Mr. Boeri’s
money, although all agree—including the IRS—that the
IRS has no right to it.1

1 The panel majority states at footnote 1 that in or-
der to obtain a refund Mr. Boeri was required to file a
return showing the tax overpayment. However, Mr. Boeri
could not file a United States tax return for he was not
subject to United States tax. He had no U.S. tax account,
no tax identification number, no Social Security number
or Medicare account. Instead of notifying Verizon or Mr.
Boeri of the questions raised by this payment, the IRS
remained silent and kept the money—which the IRS now
refuses to return, although the government agrees that
the IRS has no right to it.
4 MARIO BOERI v. US
In such circumstances, application of the look-back is
not “the exertion of taxation, but a confiscation of proper-
ty.” Brushaber v. Union Pac. R.R. Co., 240 U.S. 1, 24–25
(1916) (the “seeming exercise of the taxing power” may be
a “taking . . . in violation of the 5th Amendment” if suffi-
ciently “arbitrary” or “so wanting in basis . . . as to pro-
duce such a gross and patent inequality”); see Charles C.
Steward Mach. Co. v. Davis, 301 U.S. 548, 584–85 (1937)
(arbitrary application of the tax statute, “if gross enough,
is equivalent to confiscation and subject under the Fifth
Amendment to challenge and annulment”). The Tucker
Act’s six-year limitations period, not the three-year look-
back, is controlling.
Neither the government, nor the Court of Federal
Claims, nor my colleagues, can provide legal authority for
retention of the erroneous payment. Maj. op. 4–6 (per-
haps withholding was under chapter 24, or perhaps under
chapter 3). My colleagues cannot even determine when
Mr. Boeri’s taxes—which he did not owe—were supposed-
ly “deemed paid.” Id. (perhaps April 15, perhaps June
15). Mr. Boeri states that the entirety of the withholding
was a mistake, not a “tax overpayment.” The government
does not argue otherwise. No matter; according to the
panel majority, Mr. Boeri loses.
To justify this unjust result, the panel majority states
that “Mr. Boeri was . . . required to file a 2004 tax return
in order to claim a refund,” citing 26 C.F.R. §1.6012-
1(b)(2)(i). Maj. op. 6. This must be news to Mr. Boeri,
since he had no U.S. tax liability, no tax identification
number, no dealings with the IRS. In all events, the
provision cited by my colleagues applies to a “nonresident
alien individual . . . who has income which is subject to
taxation under subtitle A of the Code.” §1.6012-1(b)(1)(i).
Mr. Boeri had no income “subject to taxation” under any
provision of the Code, and this assertion—which the
government does not dispute—must be taken as true on a
motion to dismiss. Subsection (b)(2)(i)’s exception-to-the-
MARIO BOERI v. US 5
exception is irrelevant, and dismissal on the pleadings
was incorrect.
“[W]here a particular construction of a statute will oc-
casion great inconvenience or produce inequality and
injustice, that view is to be avoided if another and more
reasonable interpretation is present in the statute.”
Knowlton v. Moore, 178 U.S. 41, 77 (1900). A reasonable
interpretation is that the look-back provision does not
apply on these facts. The just action is to return the
money that was mistakenly sent to the IRS in the name of
a person with neither citizenship nor residency nor em-
ployment in the United States. The unreasonable and
unjust action is to ratify the IRS’s appropriation of the
money that the IRS agrees was incorrectly sent to it.
My colleagues provide a footnote referring to Mr.
Boeri’s “unfortunate” circumstances, but argue that “the
IRS cannot be faulted for applying the look-back law
correctly,” maj. op. 7, ignoring that the IRS did not apply
the correct law. If the IRS had applied the law correctly,
a notification of the erroneous payment would have been
issued and the payment returned, and on this appeal the
government would know which Code provision supposedly
governed the erroneous payment, instead of leaving this
court to guess, see maj. op. 4–6 (guessing). The panel
majority’s position that the IRS’s confiscation of Mr.
Boeri’s money constitutes applying the law correctly is as
insupportable as it is unconscionable.
From my colleagues’ choice of the unreasonable and
unjust result, I respectfully dissent.