Sarmiento v. United States

11-3752(L)
Sarmiento v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2011

(Argued: March 7, 2012 Decided: May 2, 2012)

Docket Nos. 11-3752 (L), 11-4495 (XAP)

_______________

GERMAN A. SARMIENTO AND AURA M. MONTOYA,

Plaintiffs-Appellants-Cross-Appellees,

—v.— 11-3752 (Lead)
11-4495 (XAP)
UNITED STATES OF AMERICA,

Defendant-Appellee-Cross-Appellant.*

_______________

Before :

KATZMANN, PARKER, and WESLEY, Circuit Judges.

_______________

Appeal from Memorandum and Order of the United States District Court for the Eastern
District of New York (Glasser, J.) granting in part and denying in part the motion of Defendant-
Appellee the United States to dismiss the Complaint for failure to state a claim. Plaintiffs-
Appellants German Sarmiento and Aura Montoya contend that the United States Internal
Revenue Service (“IRS”) wrongfully withheld tax refunds to which plaintiffs were entitled as the
result of the IRS’s misinterpretation of contractual language in Offer-in-Compromise (“OIC”)
agreements that plaintiffs entered into with the IRS in 2007. Specifically, plaintiffs argue that a
provision in the OIC agreements stating that plaintiffs agree to forfeit to the IRS “any refund . . .
due to [them] because of overpayment of any tax” for the 2007 tax year does not apply to tax

*
The Clerk of the Court is directed to amend the caption as noted.
refunds resulting from plaintiffs’ receipt of an Earned Income Tax Credit, an Additional Child
Tax Credit, or a “recovery rebate” under the Economic Stimulus Act of 2008, I.R.C. § 6428
(2008), because they are not “refunds” resulting from an “overpayment” of taxes, as those terms
are commonly understood outside of the tax context.

We hold that, when used in IRS standard form documents, specialized tax terms such as
“refund” and “overpayment” are interpreted in light of the Internal Revenue Code. Further, we
hold that tax refunds made pursuant to the Economic Stimulus Act of 2008 relate to the 2007 tax
year, and so those refunds fall with the OIC agreements’ temporal limitation. Finally, we hold
that plaintiffs’ agreement to forfeit their interest in “any” tax refund for the 2007 tax year
encompasses anticipated as well as unanticipated tax refunds. Based on these holdings, we
conclude that the IRS correctly withheld the tax refunds at issue in this action from plaintiffs
under the express terms of the OIC agreements.

Accordingly, for the reasons stated below, the judgment of the district court is
AFFIRMED in part and REVERSED in part.
_______________

CARLTON M. SMITH, Director, Benjamin N. Cardozo School of Law Tax
Clinic, New York, N.Y., for Plaintiffs-Appellants.

DAMON W. TAAFFE, Attorney (Jonathan S. Cohen, Attorney, Tamara W.
Ashford, Deputy Assistant Attorney General, on the brief), Tax Division,
U.S. Department of Justice, for Defendant-Appellee**
_______________

KATZMANN, Circuit Judge:

In this case, we are called on, in principal part, to determine whether specialized tax

terms in an Offer-in-Compromise (“OIC”) agreement derive their meaning from the Internal

Revenue Code or from ordinary “plain English.” Plaintiffs-Appellants German Sarmiento and

Aura Montoya (“plaintiffs”) filed this action seeking to recover tax refunds that Defendant-

Appellee the United States withheld from them pursuant to OIC agreements they each entered

**
This appeal was heard by the Court in tandem with a related but not formally
consolidated action, Maniolos v. United States, No. 10-4933-cv, which we resolve by a separate
summary order filed simultaneously with this Opinion. Counsel of record for the United States
in the Maniolos action, Jaime Leeser Nawaday, Assistant United States Attorney for the
Southern District of New York, argued both cases on behalf of the United States in the
consolidated oral argument.

2
into with the United States Internal Revenue Service (“IRS”) in 2007. Under the OIC program,

authorized under § 7122(a) of the Internal Revenue Code (or the “Code”), the IRS may agree to

compromise delinquent taxpayers’ unpaid tax liabilities in exchange for the payment of a fixed

sum, as well as certain “additional consideration.” I.R.C. § 7122(a); Treas. Reg. § 301.7122-

1(e). As is provided in the OIC standard form, IRS Form 656, this “additional consideration”

includes “any refund, including interest, due to [the taxpayer] because of overpayment of any tax

or other liability, for tax periods extending through the calendar year in which the IRS accepts

the offer.” Compl. ¶ 11 (quoting IRS Form 656 (2007)). Pursuant to the “additional

consideration” provision in the OIC agreement, the IRS withheld payment of certain tax refunds

to which plaintiffs were otherwise entitled. Specifically, the IRS withheld: (1) a payment under

the Economic Stimulus Act of 2008 (“ESA”), Pub. L. No. 110-185, 122 Stat. 613 (Feb. 13, 2008)

(codified at I.R.C. § 6428), and (2) a tax refund for the 2007 tax year based on plaintiffs’

entitlement to an Earned Income Tax Credit (“EITC”) under I.R.C. § 32 and an Additional Child

Tax Credit (“ACTC”) under I.R.C. § 24(d).

Plaintiffs filed a Complaint in the United States District Court for the Eastern District of

New York (Glasser, J.) seeking to recover the tax refunds from the United States. See 28 U.S.C.

§ 1346(a)(1) (granting federal courts jurisdiction over civil actions against the United States for

recovery of wrongfully collected internal revenue taxes). The United States moved to dismiss

the Complaint, and, by Memorandum and Order dated August 31, 2011, the district court granted

the motion in part and denied the motion in part. In particular, the district court held that

plaintiffs were not entitled to a tax refund for the 2007 tax year resulting from the EITC and

ACTC tax credits, but were entitled to the stimulus payment under the ESA. See Sarmiento v.

United States, 812 F. Supp. 2d 137, 141-42 (E.D.N.Y. 2011).

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 For the reasons described below, we conclude that plaintiffs are not entitled to any of the

withheld tax refunds they seek in this action. Specifically, we hold: (a) that all the payments

withheld by the IRS constitute tax “refund[s]” under the OIC agreements’ “additional

consideration” provision, (b) that tax refunds made pursuant to the ESA apply to the 2007 tax

year, and (c) that, by entering into OIC agreements, plaintiffs contracted away their right to “any

refund” to which they were otherwise entitled for the 2007 tax year, including ESA payments.

Accordingly, we affirm the district court’s Order in part, reverse the district court’s Order in

part, and remand the case for further proceedings consistent with this Opinion.

BACKGROUND

The following facts are drawn from the allegations in plaintiffs’ Complaint, together with

those “documents . . . incorporated in it by reference” and “matters of which judicial notice may

be taken.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotation

marks omitted).

Sarmiento and Montoya have been married “since before 1996” and live with their minor

child. Compl. ¶ 7; J.A. 22. Both Sarmiento and Montoya work as independent contractors --

Sarmiento as a taxi driver and Montoya as a cleaner of commercial office space -- and were for

many years unaware of their obligation to make estimated Medicare and Social Security tax

payments on their self-employment income. Accordingly, by 2007, Sarmiento and Montoya

jointly owed the United States more than $30,000 in unpaid tax liabilities pertaining to the 1996,

1997, 1999, 2000, 2001, 2003, and 2004 tax years.

The Internal Revenue Code authorizes the government to “compromise any civil . . . case

arising under the internal revenue laws.” I.R.C. § 7122(a). Accordingly, a taxpayer with

4
outstanding tax liabilities may offer to settle and discharge those liabilities by paying part of

what she owes to the IRS. See id. § 7122(c)-(f) (establishing the process by which a taxpayer

may offer to compromise her outstanding tax liabilities, as well as the standards by which the

IRS evaluates such offers). The IRS provides a standard form -- Form 656 -- with which a

taxpayer may make an “Offer-in-Compromise” to the IRS. See Compl. ¶ 11. Form 656 includes

a number of conditions that the taxpayer must certify that she has read, understands, and agrees

to. See J.A. 48. Among these conditions is the taxpayer’s agreement that:

As additional consideration beyond the amount of my/our offer, the IRS will keep
any refund, including interest, due to me/us because of overpayment of any tax or
other liability, for tax periods extending through the calendar year in which the
IRS accepts the offer.

Compl. ¶ 11; see also, e.g., J.A. 48 (requiring the offering taxpayer to agree to be a compliant

taxpayer for the following five years).

On November 14, 2007, Sarmiento and Montoya entered into separate OIC agreements

with the IRS wherein they agreed to pay a total of $2,000 -- $1,000 each -- to compromise their

approximately $30,000 in outstanding tax liabilities. The letters from the IRS accepting

plaintiffs’ offers each reiterated that “the conditions of the offer include the provision that as

additional consideration for the offer, we will retain any refunds or credits that you may be

entitled to receive for 2007 or for earlier tax years,” including “refunds you receive in 2008 for

any overpayments you made toward tax year 2007 or toward earlier tax years.” J.A. 45, 52.

Sarmiento and Montoya both completed their $1,000 payments to the IRS in 2008. Id. at 59-60.

Meanwhile, on February 13, 2008, Congress enacted the Economic Stimulus Act of

2008, Section 101 of which granted “2008 recovery rebates for individuals” in the form of tax

credits. See Pub. L. No. 110-185 (codified at I.R.C. § 6428). Specifically, subsections (a) and

5
(b) of ESA § 101 grants eligible individuals a tax credit for the 2008 tax year in an “amount

equal to the lesser of -- (1) net income tax liability, or (2) $600,” with a minimum rebate of $300.

I.R.C. § 6428(a)-(b). Further, in order to distribute this tax credit as soon as possible, subsection

(g) of ESA § 101 allows taxpayers to receive an “advance refund” of their 2008 tax credit. Id.

§ 6428(g). Subsection (g), entitled “Advance refunds and credits,” states:

(1) In general.—Each individual who was an eligible individual for such
individual’s first taxable year beginning in 2007 shall be treated as having made a
payment against the tax imposed . . . for such first taxable year in an amount equal
to the advance refund amount for such taxable year.

(2) Advance refund amount.—For purposes of paragraph (1), the advance refund
amount is the amount that would have been allowed as a credit under this section for
such first taxable year if this section (other than subsection (f) and this subsection)
had applied to such taxable year.

Id. To the extent a taxpayer is eligible for an “advance refund” pursuant to subsection (g),

subsection (f) provides that the otherwise applicable 2008 tax credit “shall be reduced (but not

below zero)” by that amount. Id. § 6428(f). To facilitate the rapid distribution of the stimulus

payments, subsection (g)(3) directs that any refund or credit should be made “as rapidly as

possible” and that no refund or credit will be made after December 31, 2008. Id. § 6428(g)(3).

In early 2008, Sarmiento and Montoya filed a joint tax return for the 2007 tax year by

means of an IRS standard Form 1040, in which they reported no income tax liability and self-

employment payroll taxes of $2663. In addition, they claimed two refundable credits: an EITC

of $2831 and an ACTC of $864. Accordingly, Sarmiento and Montoya requested a 2007 tax

year refund of $1032 -- the difference between the sum of their EITC and ACTC credits and

their reported tax liability. In addition, because they each had “qualifying income” over $3000

and a dependent “qualifying child,” Sarmiento and Montoya jointly claimed a $900 tax refund

under the ESA. See I.R.C. § 6428(b)(1). The IRS concluded, however, that the $1932 in tax

6
refunds that plaintiffs requested constitute “additional consideration” under the terms of

plaintiffs’ OIC agreements with the IRS, and therefore withheld payment of those funds.1

On June 30, 2009, Sarmiento and Montoya filed an administrative claim with the IRS

under I.R.C. § 7422 seeking to recover the withheld tax refunds. The IRS denied plaintiffs’

claim by letter dated September 4, 2009. On March 17, 2010, Sarmiento and Montoya, with the

assistance of the Benjamin N. Cardozo School of Law Tax Clinic, filed suit in the district court

to recover the withheld tax refunds, plus interest and costs.

The United States moved to dismiss the Complaint. By Memorandum and Order dated

August 31, 2011, the district court first granted the motion in part, holding that plaintiffs’ 2007

tax year refund constitutes a “refund . . . due . . . because of overpayment” under the additional

consideration provision of the parties’ OIC agreements. See Sarmiento, 812 F. Supp. 2d at 141

(E.D.N.Y. 2011) (emphasis omitted). The district court also denied the motion in part, however,

holding that the ESA payment did not relate to the 2007 tax year, and so did not fall within the

additional consideration provision’s temporal limitation. Id. at 142-43; see also Compl. ¶ 11

(noting that the additional consideration only relates to the “tax period[] extending through the

calendar year in which the IRS accepts the offer”). Further, the district court held, in the

alternative, that the ESA payment cannot fall within the OIC agreements’ additional

consideration provision because plaintiffs “could not have signed away a right to a legal or

equitable interest in the [ESA payment] before that right existed unless it was within their

contemplation or intent,” which it was not. Id. at 143. Accordingly, the district court ordered

1
The United States does not dispute on appeal that, absent the OIC agreements, plaintiffs
would be entitled to the contested tax refunds.

7
the United States to pay plaintiffs $900, the amount it held they were entitled to under the ESA.

Id. Both parties filed timely appeals of the district court’s Memorandum and Order.

DISCUSSION

We review de novo a district court’s dismissal of a complaint for failure to state a claim

upon which relief can be granted, “accepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff’s favor.” Holmes v. Grubman, 568 F.3d 329,

335 (2d Cir. 2009) (internal quotation marks omitted). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks

omitted).

The principal issue on appeal is whether specialized tax terms used in an OIC agreement

take their meaning from the Internal Revenue Code or are afforded their ordinary “plain English”

meaning. As is relevant here, the terms “refund” and “overpayment” are terms of art in the tax

context, with meanings under the Code that differ considerably from their ordinary dictionary

meaning. Specifically, under the Code, the IRS is authorized to credit any “overpayment” that a

taxpayer makes on her federal taxes against that taxpayer’s liabilities, and “refund any balance”

to the taxpayer. I.R.C. § 6402(a). Both the EITC and ACTC are classified in the Code as

“refundable credits.” I.R.C. §§ 24(d), 32, 6401(b)(1). However, taxpayers who are eligible for

tax “refunds” based on EITC and ACTC tax credits do not actually “overpay” their income

taxes, at least in the traditional sense of the word. Instead, the EITC and ACTC refundable tax

credit programs are structured to create the legal fiction that recipients make “overpayments” on

their taxes, thereby entitling them to the resulting tax “refunds,” as a mechanism for achieving

certain social policy goals. See Sorenson v. Sec’y of Treasury, 475 U.S. 851, 864 (1986) (“The

8
earned-income credit was enacted to reduce the disincentive to work caused by the imposition of

social security taxes on earned income . . . , to stimulate the economy . . . , and to provide relief

for low-income families . . . .”). To achieve these ends by means of the tax system, the Code

states that if a taxpayer is owed more in refundable credits than her tax liability (after first

reducing that liability by other credits), the amount in excess “shall be considered an

overpayment” and the taxpayer is eligible for a “refund” in an amount corresponding to that

constructive overpayment. I.R.C. § 6401(b)(1) (emphasis added). Similarly, in order “[t]o

provide economic stimulus through recovery rebates to individuals,” Pub. L. No. 110-185, pmbl.,

the ESA credits eligible taxpayers with a constructive overpayment of their taxes, and deems the

stimulus credit to be a refund of this constructive overpayment. See I.R.C. § 6428(g).

As plaintiffs acknowledge, the tax credits at issue in this action are rightly considered

“overpayments” under the Code. See J.A. 33; see also Sorenson, 475 U.S. at 859 (holding that

EITC payments may be intercepted by the Secretary of Treasury under § 6402(c), which

authorizes the Secretary to intercept “overpayments” of taxes from taxpayers who fail to meet

their child support obligations); accord Israel v. United States, 356 F.3d 221, 223 (2d Cir. 2004)

(“[I]f [the EITC] were not an overpayment, it would not be refundable.”). Plaintiffs argue,

however, that terms used in OIC agreements should be afforded their “plain English” meaning

rather than their meaning under the Code, because the agreements are “drafted in colloquial

English” and “[h]ad the IRS desired to give special meanings to any terms it placed into the

OICs, it was the IRS’ duty to do so unequivocally.” Pls.’ Br. at 16. As none of the tax credits at

issue in this action result from an actual overpayment by plaintiffs to the IRS that the IRS is

refunding, adopting a “plain English” reading of the OIC agreements would mean that those

credits do not constitute “refund[s] . . . due . . . because of overpayment” under the terms of the

9
additional consideration provision. See Rucker v. Sec’y of Treasury, 751 F.2d 351, 356 (10th

Cir. 1984) (“A refund of federal taxes is a repayment of money paid by the taxpayer in excess of

the taxpayer’s liability. Although the earned income credit is given effect through the income tax

return, the credit is not a tax refund because eligibility for the credit is not contingent upon

payment of any federal income tax.”), abrogated by Sorenson, 475 U.S. 851.

It is true that “[a]n OIC is a contract between a taxpayer and the IRS” and so OIC

agreements are interpreted, under federal common law, using “[t]raditional rules of contract

law.” Begner v. United States, 428 F.3d 998, 1004 (11th Cir. 2005); see also Robinette v.

Comm’r, 439 F.3d 455, 462 n.6 (8th Cir. 2006); United States v. Lane, 303 F.2d 1, 4 (5th

Cir.1962) (“It has long been settled that an agreement compromising unpaid taxes is a contract

and, consequently, that it is governed by the rules applicable to contracts generally.”). But

contractual language “must be considered from the viewpoint of one cognizant of the customs,

practices, usages and terminology as generally understood in the particular trade or business,”

Kerin v. U.S. Postal Serv., 116 F.3d 988, 992 n.2 (2d Cir. 1997) (internal quotation marks

omitted), and this includes contracts with the United States regarding a party’s federal tax

obligations. See United States v. Standard Rice Co., 323 U.S. 106, 109-10 (1944); see also 11

Williston on Contracts § 30:19 (4th ed. 2005) (“[C]ontractual language must be interpreted in

light of existing law, the provisions of which are regarded as implied terms of the contract,

regardless of whether the agreement refers to the governing law.” (footnote omitted)).

Any reasonable contracting party would understand the IRS’s standardized Form 656,

which plaintiffs used to make their Offer-in-Compromise to the IRS, as a specialized tax

document whose terms and conditions take their meaning from the Internal Revenue Code. As

an initial matter, Form 656 makes numerous express references to the Code, for example to

10
I.R.C. § 7122(c), which outlines the payments that are required under an OIC agreement. See

J.A. 48. Similarly, Form 656’s statement that the IRS “ask[s] for the information on this form to

carry out the internal revenue laws of the United States,” id. at 50, makes clear to the taxpayer

that the OIC process is a product of, and therefore ultimately governed by, the Code. See I.R.C.

§ 7122 (authorizing the IRS to “compromise any civil or criminal case arising under the internal

revenue laws”; setting standards by which the IRS determines whether to accept an OIC; and

providing the taxpayer with administrative review and appeal of an IRS decision not to accept an

OIC). A reasonable taxpayer understands that when she enters into a contract with the IRS to

compromise her outstanding tax liabilities in exchange for, in part, foregoing her interest in “any

refund . . . due to me . . . because of overpayment” for the current tax year, she does so against

the backdrop of the definitions given to those terms in the Code.

Further, while the IRS has intentionally sought to draft Form 656 in a colloquial manner,

this is true of many IRS documents that are intended for the use of ordinary taxpayers while also

using specialized tax terms whose meaning is indisputably taken from the Code. For example,

the familiar IRS standard Form 1040, which the plaintiffs used to file their tax returns for the

2007 tax year, generally adopts colloquial language while still describing refundable credits such

as the EITC and ACTC as “[p]ayments” that create a fictional amount that a taxpayer “overpaid”

and can therefore have “refunded” to her. J.A. 75. Accordingly, a reasonable taxpayer using

Form 1040 to file her taxes would understand the credits at issue in this action as creating

constructive “overpayments” resulting in fictional “refunds” when they file their tax returns.

Reasonable taxpayers would also understand that Form 1040’s adoption of terms with

specialized tax meanings carry over and apply to the IRS’s use of the same terms in Form 656.

In addition, we think the notion that specialized tax terms contained in an IRS standard form

11
contract do not take their meaning from the Code is in tension with the practical administration

of the tax laws. Adopting a “plain English” interpretation of the OIC agreements, as plaintiffs

urge, would have the undesirable effect of injecting unnecessary uncertainty into the judicial and

administrative interpretation of IRS standard forms.

For the foregoing reasons,2 we conclude that the plaintiffs’ 2007 tax refund, which

resulted from their entitlement to refundable tax credits under the EITC and ACTC programs, as

well as their joint stimulus payment under the ESA, both constitute “refund[s] . . . due . . .

because of overpayment” under the terms of their OIC agreements with the IRS.

Next, we turn to whether the ESA tax refunds fall within the OIC agreements’ additional

consideration provision’s temporal limitation to the “tax period[] extending through the calendar

year in which the IRS accepts the offer,” J.A. 48, which in this case is the 2007 tax year.

2
Plaintiffs also make a number of policy arguments in support of their reading of the OIC
agreements. First, plaintiffs contend that the OIC agreement’s additional consideration provision
was “intended to stop the gaming of the IRS in computing revenue collection potential” that
could be achieved if a taxpayer deliberately overpaid their taxes in the year she submits an OIC
to the IRS, thus shielding that income from the IRS as it considers whether to accept the offer
but ensuring a refund of the shielded funds. Pls.’ Br. at 39-40. Plaintiffs cite no authority to
support their assertion that the fear of such “gaming” motivated the IRS’s inclusion of the
additional consideration provision in its standard form OIC agreement. Moreover, this “gaming”
rationale for the additional consideration provision is in tension with the plain language of the
OIC agreement, which encompasses “any refund” due to a taxpayer because of overpayment,
and is not textually restricted to address the hypothetical scenario posed by plaintiffs. Second,
plaintiffs argue that defining “overpayment” and “refund” in accordance with the Code “defeats
the fresh start” that the OIC program is designed to give delinquent taxpayers. Id. at 41. While
it is true that one of the stated objectives of the OIC program is to “[p]rovide the taxpayer a fresh
start toward future voluntary compliance with all filing and payment requirements,” Internal
Revenue Manual, § 5.8.1.1.4(1), the OIC program is equally motivated by the need to “[s]ecure
collection of revenue,” id., a goal that is furthered by the interpretation of the OIC agreements
that we adopt in this Opinion. Finally, plaintiffs contend that interpreting OIC agreements in
accordance with the Code frustrates the social policy objectives that animated Congress to create
the tax credits at issue in this action. As the Supreme Court has made clear, however, the social
policy considerations underlying certain tax credits do not remove those credits from the
ordinary operation of the tax laws. See Sorenson, 475 U.S. at 864-65 (“The ordering of
competing social policies is a quintessentially legislative function.”).

12
Subsections (a) and (b) of I.R.C. § 6428 provide certain tax credits to individuals “for the first

taxable year beginning in 2008.” I.R.C. § 6428(a)-(b). However, in order to provide an

“advance refund” of the tax credit available under the ESA, subsection (g)(1) of I.R.C. § 6428

provides that “[e]ach individual who was an eligible individual for [tax year 2007] shall be

treated as having made a payment against the tax . . . for [tax year 2007] in an amount equal to

the advance refund amount for [tax year 2007].” Id. § 6428(g)(1). The “advance refund

amount” is defined in subsection (g)(2) as “the amount that would have been allowed as a credit .

. . for [tax year 2007] if this section (other than subsection (f) and this subsection) had applied to

[tax year 2007].” Id. § 6428(g)(2). For taxpayers who are eligible for “advance refunds of

credit,” subsection (f) reduces the amount of those taxpayers’ 2008 tax credit, available under

subsections (a) and (b), “by the [amount of] the refunds and credits made or allowed to the

taxpayer under subsection (g).” Id. § 6428(f).

While hardly a model of lucid statutory draftsmanship, we think the ESA is clear on its

face with regard to which tax years the stimulus credits relate: the basic credit available under

subsections (a) and (b) grants eligible taxpayers a refund applicable to the 2008 tax year,

whereas the “advance refunds” available under subsection (g) grants eligible taxpayers a refund

applicable to the 2007 tax year. As plaintiffs were eligible for an “advance refund” of their ESA

tax credit under subsection (g), see Compl. ¶ 15, plaintiffs’ ESA tax credit constituted a “refund”

on their 2007 taxes. Accordingly, plaintiffs’ ESA tax refund was within the temporal reach of

the OIC agreements’ additional consideration provision, which restricted the IRS’s entitlement to

withhold plaintiffs’ tax refunds to those pertaining to the 2007 tax year.

The district court, by contrast, concluded that the advance refund available under I.R.C.

§ 6428(g)(1) is merely measured in reference to a taxpayer’s 2007 tax liability, but does not

13
actually apply to the 2007 tax year. See Sarmiento, 812 F. Supp. 2d at 142 (“[Section] 6428(g)

provides that the IRS is to look to the 2007 tax year as a template for calculating the amount of

the rebate due . . . for the 2008 tax year.”). We respectfully disagree. First of all, I.R.C. §

6428(g)(1) states that eligible taxpayers “shall be treated as having made a payment against”

their 2007 tax year obligations “in an amount equal to the advance refund amount for [the 2007

tax year].” I.R.C. § 6428(g)(1) (emphasis added). This “shall be treated” language mirrors that

of I.R.C. § 6401(b)(1), which provides that if refundable tax credits such as those available under

the EITC program exceed the amount of a taxpayer’s overall tax liability, that amount “shall be

considered an overpayment.” Id. § 6401(b)(1) (emphasis added). As the Supreme Court has

held, considering EITC tax credits as “overpayments” means that they are treated as such in all

areas of tax administration, even those that would seem to have no connection with the purpose

of the EITC program. See Sorenson, 475 U.S. at 859-60. Accordingly, reading these two Code

provisions in tandem, we conclude that I.R.C. § 6428(g)(1) is best interpreted as establishing the

legal fiction that eligible taxpayers overpaid their 2007 taxes in an amount equal to the “advance

refund” of their ESA stimulus credit, and not merely as a “mechanism for making an advance

payment or refund and credit for the 2008 tax year.” Sarmiento, 812 F. Supp. 2d at 142.

Moreover, I.R.C. § 6428(g)(2) defines “the advance refund amount” as “the amount that would

have been allowed as a credit . . . if this section (other than subsection (f) and this subsection)

had applied to [tax year 2007].” I.R.C. § 6428(g)(2) (emphases added). This negative

conditional phrasing seems to reflect a presumption on the part of Congress that the “advance

refunds” available under subsections (f) and (g), in contrast to those available under subsections

(a) and (b), do apply to the 2007 tax year.

14
 Separately, plaintiffs note that the ESA was modeled on a similar statute, the Economic

Growth and Tax Relief Reconciliation Act of 2001 (the “2001 Stimulus Act”), Pub. L. No. 107-

16, 115 Stat. 42 (June 7, 2001) (formerly codified at I.R.C. § 6428), which provided eligible

taxpayers a tax credit “for 2001,” the year the statute was enacted, by means of an “advance

refund” of constructively overpaid taxes. See Pub. L. No. 107-16, § 101(b)(1). In 2002, the 9th

Circuit’s Bankruptcy Appellate Panel held that the 2001 Stimulus Act’s tax credit created a

refund for the 2001 tax year, reasoning that the statute’s “advance refund” was merely calculated

by reference to the taxpayer’s 2000 tax year obligations. See In re Lambert, 283 B.R. 16, 20-21

(B.A.P. 9th Cir. 2002) (ruling that the debtor’s 2001 stimulus payment was not part of the

bankruptcy estate where the debtor filed for bankruptcy in February 2001 -- before the 2001

Stimulus Act was passed and the check was issued, but after the 2000 tax year). Plaintiffs

contend, and the United States does not dispute, that Lambert was the only reported case

interpreting § 101(b)(1) of the 2001 Stimulus Act when Congress passed the ESA. Accordingly,

plaintiffs argue that one can discern from Lambert what Congress intended when it enacted

language in subsection (g) in the ESA that tracked similar language in §101(b) of the 2001

Stimulus Act. See Cheshire v. Comm’r, 282 F.3d 326, 332 n.15 (5th Cir. 2002) (congressional

intent can be discerned by looking to judicial interpretations of similar statutory provisions).

Any tension between Lambert and the holding in the instant case, however, dissipates

when one considers that the ESA and the 2001 Stimulus Act were enacted on different sides of

the annual tax deadline. Notably, as the Lambert court reasoned, “[t]he refund [provided by the

2001 Stimulus Act] is ‘advance’ because, upon the Act’s enactment, year-2001 taxes were not

yet due.” 283 B.R. at 20. In other words, because most taxpayers had already filed their taxes

for the preceding year at the time that the 2001 Stimulus Act was enacted in June of 2001,

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Congress would have been unlikely to characterize any additional tax credit for the 2000 tax year

as an “advance” refund. The ESA, by contrast, was enacted in February of 2008, meaning that

taxpayers could still receive an “advance refund” of their 2007 taxes while complying with the

mid-April 2008 filing deadline for the 2007 tax year. This distinction in the timing of the two

statutes in relation to the annual tax filing deadline renders it entirely consistent to interpret the

same phrase -- “advance refunds” -- to mean one thing in the ESA and another in the 2001

Stimulus Act.3 See Maniolos v. United States, 741 F. Supp. 2d 555, 564-65 (S.D.N.Y. 2010).

For the aforementioned reasons, we conclude that I.R.C. § 6428(g) grants taxpayers an

“advance refund”of their taxes for the 2007 tax year, based on a constructive overpayment of

taxpayers’ 2007 tax year obligations. Accordingly, the ESA stimulus payment falls within the

temporal limitation in plaintiffs’ OIC agreements with the IRS, and we therefore reverse the

district court’s holding that plaintiffs are entitled to that payment.

Finally, we turn to the district court’s alternative holding that plaintiffs are entitled to the

ESA payment “even if the ESA relates to the 2007 year” because “plaintiffs could not have

signed away a right to a legal or equitable interest in the rebate before that right existed unless it

was within their contemplation or intent.” Sarmiento, 812 F. Supp. 2d at 143. We disagree, and

hold that ESA stimulus payments are contractually within the scope of plaintiffs’ OIC

agreements. It is well established that “where the language of a contract is unambiguous, the

parties’ intent is determined within the four corners of the contract.” Feifer v. Prudential Ins.

Co. of Am., 306 F.3d 1202, 1210 (2d Cir. 2002). The pertinent language of the parties’ OIC

agreements could not be clearer in expressing that “the IRS will keep any refund . . . due . . .

3
In noting that it would not be inconsistent for the phrase “advance refund” to have a
different meaning in the ESA than in the 2001 Stimulus Act, we assume without deciding that
the Lambert court correctly interpreted the 2001 Stimulus Act.

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because of overpayment of any tax or other liability” for tax year 2007. Compl. ¶ 11 (emphases

added). By agreeing to this provision, plaintiffs expressly agreed to forfeit to the IRS “any” tax

refunds to which they would otherwise be entitled for the 2007 tax year, even those not within

their conscious contemplation or intent at the time of contracting. Cf. Bell v. Cendant Corp., 293

F.3d 563, 568 (2d Cir. 2002) (noting that an agreement providing for arbitration of “any

controversy” is “as broad an arbitration provision as one can imagine” as it is “inclusive,

categorical, unconditional and unlimited” (internal brackets and quotation marks omitted)).

Accordingly, we conclude that, in broadly contracting away their interest in “any” tax refund for

the 2007 tax year, plaintiffs assumed the risk that they would become eligible for unanticipated

tax credits for the 2007 tax year and thereby become contractually obligated to forfeit their

entitlement thereto to the IRS.

CONCLUSION

For the foregoing reasons, we hold that specialized tax terms in IRS standard forms take

their meaning from the Internal Revenue Code, and that the tax refunds at issue in this action

therefore constitute “refund[s] . . . due . . . because of overpayment” under the express terms of

plaintiffs’ OIC agreements with the IRS. In addition, we hold that advance tax refunds made

pursuant to the ESA relate to the 2007 tax year, and that ESA stimulus payments fall within

plaintiffs’ broad agreement to waive their interest in “any” tax refund pertaining to the 2007 tax

year. Based on these holdings, we conclude that plaintiffs have failed to state a claim against the

United States for wrongful withholding of taxes.

We therefore AFFIRM the district court’s Memorandum and Order insofar as the court

granted the United States’s motion to dismiss plaintiffs’ Complaint, REVERSE the district

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court’s Memorandum and Order insofar as it denied the motion, and REMAND the case to the

district court with instructions to enter judgment in favor of the United States.

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