Moshe Git v. Dept. of Treasury

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No. 95-1899
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Moshe Baruch Git; Judith Beyla *
Git, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Department of the Treasury; *
Internal Revenue Service; United * [UNPUBLISHED]
States of America, *
*
Appellees. *

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Submitted: December 26, 1995

Filed: January 4, 1996
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Before BOWMAN, BEAM, and MURPHY, Circuit Judges.
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PER CURIAM.

Moshe B. Git and his wife, Judith B. Git, appeal the district
court's1 dismissal of their complaint seeking a refund of 1986
taxes, damages for emotional distress, and punitive damages. We
affirm.

The Gits filed suit seeking the refund, with interest, of
$2,087.82 withheld from Mr. Git's earnings in 1986, emotional
distress and punitive damages, and costs. They named the
Department of the Treasury; the Internal Revenue Service; Lloyd
Bentsen, Secretary of the Treasury; and Margaret Milner Richardson,

1
The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
Commissioner of the Internal Revenue Service. The Gits later added
the United States as a defendant.

The Gits alleged a disabling illness prevented Mr. Git from
completing the couple's 1986 joint tax return and Mrs. Git lacked
the knowledge to do so. They further alleged when Mr. Git
conferred by telephone with an IRS agent regarding a filing
extension, the agent told him "there was no need for a formal
extension of time to file, since [he] could file at anytime and not
lose anything." The Gits maintained they relied upon the agent's
advice, and filed their 1986 tax return on April 15, 1991, but were
denied their $2,087.82 refund.

The district court dismissed the Gits' claim for emotional
distress and punitive damages as to the United States and the Gits'
tax refund claim as to the IRS, Department of the Treasury, Bentsen
and Richardson. After the United States was substituted for
Bentsen and Richardson, the district court dismissed the remaining
claims, concluding the tax refund claim was time-barred, and the
emotional distress and punitive damages claims were barred by
sovereign immunity.

The dismissal of a complaint under Federal Rule of Civil
Procedure 12 for failure to state a claim or lack of subject matter
jurisdiction is reviewed de novo. Alexander v. Peffer, 993 F.2d
1348, 1349 (8th Cir. 1993) (failure to state a claim); Schneider v.
United State, 27 F.3d 1327, 1331 (8th Cir. 1994) (subject matter
jurisdiction), cert. denied, 115 S. Ct. 723 (1995).

The circuits are split on whether the limitations periods in
section 6511 may be equitably tolled. Compare Brockamp v. United
States, 67 F.3d 260 (9th Cir. 1995) (holding tolling allowed) with
Webb v. United States, 66 F.3d 691 (4th Cir. 1995) (no tolling
allowed) and Oropallo v. United States, 994 F.2d 25 (1st Cir. 1993)
(no tolling allowed). We do not decide the issue here because,

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even if the limits contained in 26 U.S.C. § 6511 can be equitably
tolled, the Gits do not qualify for such relief. We conclude that
neither the IRS's bad advice nor Mr. Git's poor health provides
sufficient grounds for equitable tolling against the government.
See Miller v. Runyon, 32 F.3d 386, 389 (8th Cir. 1994); Medellin v.
Shalala, 23 F.3d 199, 204 (8th Cir. 1994) (misconduct on
government's part or gross, but good faith, error on claimant's
part is necessary to justify equitable tolling); see also Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (tolling has
been allowed only where party filed timely but defective pleading,
and where adversary has tricked or induced party to let deadline
pass). We also note the Gits have offered no explanation, other
than her unfamiliarity with the couple's finances, why Mrs. Git
could not have pursued the couple's refund.

Likewise, the IRS agent's misstatement of the law was not
affirmative misconduct that would estop the government from
asserting section 6511's limitations period. See Olsen v. United
States, 952 F.2d 236, 241-42 (8th Cir. 1991) (party did not show
affirmative act where IRS agents erroneously told him IRS held
superior lien on his property); United States v. Manning, 787 F.2d
431, 436-37 (8th Cir. 1986) (no affirmative misconduct even if
government agent erroneously misled party about legality of hunting
geese in baited fields).

The district court properly rejected the Gits' argument that,
under United States v. Dubuque Packing Co., 233 F.2d 453 (8th Cir.
1956), the money they seek is a deposit and not "tax money" within
the reach of section 6511. See United States v. Dalm, 494 U.S.
596, 609 n.6 (1990) (refusing to distinguish between suits for
refunds and suits for funds wrongfully retained; noting that § 6511
applies to all overpayments of taxes). The district court also
properly concluded that sovereign immunity bars the Gits' claim for
emotional distress and punitive damages, as their claims all arise
from the denial of their refund and allegedly erroneous information

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given them by the IRS. See 28 U.S.C. § 2680(c) (excepts from the
FTCA's waiver of sovereign immunity, "claim[s] arising in respect
of the assessment or collection of any tax"); 28 U.S.C. § 2674
(barring recovery of punitive damages from the government).

The district court did not abuse its discretion in denying the
Gits' request for an indefinite abeyance and in granting
defendants' motion to dismiss without giving the Gits a further
opportunity to respond. See Watson v. Miears, 772 F.2d 433, 437
(8th Cir. 1985) (standard of review). Further, the district court
properly substituted the United States as defendant for Bentsen and
Richardson. See 28 U.S.C. § 2679(b)(1) (barring Federal Tort
Claims Act suits against government employees for acts and
omissions occurring within the scope of their employment or
office).

The parties' motions to file supplemental briefs are denied.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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