Clark v. United States

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1173

GRENVILLE CLARK III,

Plaintiff, Appellee,

v.

UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Martin F. Loughlin, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Stahl, Circuit Judge,

and Dominguez,* District Judge.

Kent L. Jones, Tax Assistant to the Solicitor General, with whom

Loretta C. Argrett, Assistant Attorney General, and Gary R. Allen,

David English Carmack, and Sally J. Schornstheimer, Attorneys,

Department of Justice, Tax Division, were on brief for appellants.
Grenville Clark III pro se.

August 29, 1995

*Of the District of Puerto Rico, sitting by designation.

STAHL, Circuit Judge. In this federal income tax
STAHL, Circuit Judge.

case, the government appeals the district court's grant of

summary judgment to taxpayer Grenville Clark III in his suit

to recover monies collected by the Internal Revenue Service

("IRS") by levy. Although we agree with the district court

that summary judgment for the taxpayer was appropriate, we

reduce the amount of the judgment because the district court

erred in finding that Clark had fully extinguished his 1985

tax liability.

I.
I.

Factual Background
Factual Background

The material facts are not in dispute. On August

14, 1986, Clark and his then-spouse, Marguerite Clark, filed

their 1985 income tax return, which the IRS received on

August 18, 1986. The return indicated a total tax liability

of $13,648.00, and on September 29, 1986, the IRS assessed

the Clarks' 1985 tax liability in that amount.1 Because the

1. Typically, when the IRS receives a tax return, it
evaluates the return for accuracy. If, as in this case, it
finds the return satisfactory, it enters an assessment for
the amount of tax the taxpayer calculated to be owing. See

26 U.S.C. 6201, 6203. If it disagrees with the taxpayer's
determination of the tax liability, the IRS may enter a
different assessment, but only after it issues a notice of
deficiency to the taxpayer and gives him or her ninety days
to challenge its calculations in the Tax Court. 26 U.S.C.
6201, 6212, 6213. The IRS has three years from the date a
return is filed to make an assessment of liability. 26
U.S.C. 6501. If the IRS discovers that an assessment "is
imperfect or incomplete in any material respect," it may
correct the problem by making a supplemental assessment if it
does so within the three-year time period for making

-2-
2

Clarks did not pay the tax in full at the time of filing, the

IRS added penalties and interest to the amount due. The IRS

then placed a lien upon their real and personal property and

demanded that they satisfy the outstanding tax.

As of June 13, 1987, Clark had made several

payments on his 1985 tax liability. He also had an unpaid

tax liability for 1986 in the amount of $13,415.00, plus

interest and penalties. On June 13, 1987, Clark sent the IRS

a check for $13,415.00, which he indicated should be applied

to his 1986 liability by writing in the "memo" portion of the

check: "1040 12/31/86 [Clark's social security number]."2

assessments. 26 U.S.C. 6204.
Once it makes an assessment of a taxpayer's tax
liability for a given year, the IRS generally has sixty days
to issue a notice and demand for payment to the taxpayer, 26
U.S.C. 6303(a), and ten years to collect the assessed
amount, 26 U.S.C. 6502(a)(1). Collection may be made
through administrative methods (including federal liens and
levies), see 26 U.S.C. 6321, 6331, or judicial methods

(suits to foreclose liens or to reduce assessments to
judgment), see 26 U.S.C. 7403. If it does not make an

assessment within three years of the filing of a return, the
IRS may not pursue collection activities after the close of
the three-year period. 26 U.S.C. 6501. It can, however,
file suit for collection without an assessment if it does so
during the three-year period. Id.

2. In a letter to the IRS dated September 22, 1989, Clark
wrote:
This payment was voluntarily made, and
the memo on the check itself clearly
indicates that I designated that it be
applied to my 1986 Form 1040 tax
liability. This memo conforms with the
instruction found at line 67 of my 1986
return which asks that I write my social
security number and "1986 Form 1040" on
it.

-3-
3

The IRS, however, applied the $13,415.00 payment to Clark's

outstanding tax liability for 1985, which paid off the

balance due3 and yielded an overpayment for that year. On

July 17, 1987, the IRS issued Clark a refund check for

$11,652.28.

Clark and the IRS corresponded over the next

several years, both about the refund and about the balance

due on the 1986 account, which had not been credited with the

$13,415.00 payment. In his correspondence, Clark insisted

that he had made a $13,415.00 payment towards his 1986 tax

liability, but did not explicitly mention that it had been

misapplied to his 1985 account and mostly refunded to him.

Clark points out, however, that the copies of the cancelled

check he repeatedly sent to the IRS showed code numbers

imprinted by the IRS that indicated exactly how the payment

had been applied.

Finally, in November 1990, the IRS realized that it

had misapplied the 1986 payment to Clark's 1985 account.

Clark continued to insist, however, that as he had designated

that the payment be applied to his 1986 account, he should

receive credit for it there. In response, the IRS removed

3. According to our calculations, the balance due on June
19, 1987, the date the IRS received the taxpayer's $13,415.00
payment, was $1,808.59. We calculate this number by adding
the payments Clark had made prior to the misapplication
($14,140.72) and subtracting that number from the charges
reflected in his account ($15,949.31).

-4-
4

the $13,415.00 payment from his 1985 account and applied it

to his 1986 account,4 leaving his 1985 account with, in the

IRS's view, a balance due of $13,415.00, plus penalties and

interest. After some additional correspondence about his

1985 taxes, the IRS collected $24,546.34 from Clark by

levying upon his bank accounts and seizing and subsequently

selling his car. Clark then filed a claim with the IRS for a

refund, but the claim was denied.

On January 3, 1994, Clark brought suit in the

United States District Court for the District of New

Hampshire, seeking a refund of the $24,546.34, plus interest.

Both parties moved for summary judgment. In his motion,

Clark argued that the IRS's collection activities were

unlawful because they were not done pursuant to an assessment

as required by 26 U.S.C. 6502(a)(1), since the assessment

that the IRS had entered in September 1986 had been

extinguished. The government responded that assessments

cannot be extinguished and that its crediting of Clark's 1986

account resulted in an underpayment in his 1985 account,

leaving the IRS its statutory rights to collect the unpaid

1985 tax liability on the basis of the original assessment.

4. Because the taxpayer had already satisfied his 1986
account to avoid further penalties, the transfer resulted in
an overpayment on the 1986 account. Pursuant to the
taxpayer's direction, the IRS applied the overpayment to his
tax liabilities for 1988 and 1989.

-5-
5

The district court relied on the Fifth Circuit's

decision in United States v. Wilkes, 946 F.2d 1143 (5th Cir.

1991), to hold that a full payment extinguishes an assessment

and that subsequent refunds do not revive extinguished

assessments. The district court also found that Clark's 1985

assessment had been extinguished. Although acknowledging

that Clark was getting "an undeserved windfall," the district

court granted Clark's motion for summary judgment, thus

rendering moot the government's cross motion for summary

judgment. The government appeals.

II.
II.

Discussion
Discussion

A. Standard of Review

As always, we review a district court's grant of

summary judgment de novo and, like the district court, review

the facts in the light most favorable to the nonmoving party.

See, e.g., Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995).

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c).

B. Analysis

1. Can Assessments be Extinguished?

-6-
6

The government argues that the district court erred

in holding that assessments are extinguished by payment.

Under the government's theory, assessments cannot be

extinguished, so if there is an underpayment of the amount

recorded in the assessment at any time during the ten-year

period for collection, then the IRS may institute procedures

to collect that amount. The government reasons that because

Clark's 1985 account reflected an underpayment of $13,415.00,

plus interest and penalties, after the IRS removed the

misapplied $13,415.00 payment, and because the ten-year

limitations period had not expired, the IRS was entitled to

implement administrative procedures to collect the amount

due. The government's argument has essentially three prongs.

First, the government argues that assessments

cannot be extinguished because they are merely administrative

records of a taxpayer's tax liability for a given year.

According to the government, assessments are not affected by

payment, but remain as permanent records of tax liability

regardless of whether the taxpayer satisfies that liability

or not. As such, assessments are not like promissory notes

or mortgages, which create liability and are cancelled when

the debt is satisfied. In fact, the government contends that

assessments create no liability at all, since tax liability

is created by the Internal Revenue Code and may be collected

-7-
7

even without an assessment if the IRS brings suit within

three years of the filing of a return.

Second, the government argues that the Internal

Revenue Code's distinction between rebate refunds and non-

rebate refunds5 supports its position that assessments

cannot be extinguished. This argument is based on the

government's contention that when the IRS erroneously refunds

an amount to a taxpayer, it can reclaim that amount in two

ways: (1) by bringing an erroneous-refund suit under 26

U.S.C. 7405, or (2) through administrative collection

procedures.6 Under the government's view, if assessments

can be extinguished, then the IRS would not be able to pursue

5. Rebate refunds are generated when the IRS recalculates a
taxpayer's tax liability for a given year, as when, for
example, a taxpayer submits an amended return showing
additional deductions. According to the government, when the
IRS issues a rebate refund, the original assessment is abated
to the extent of the refund so that it reflects the
taxpayer's actual tax liability for the year in question.
Non-rebate refunds, on the other hand, stem not from a
recalculation of the taxpayer's tax liability, but rather
from a determination that the taxpayer paid more than the
assessed amount. According to the government, non-rebate
refunds do not affect the original assessment, which remains
intact as an accurate record of the taxpayer's tax liability.

6. The government contends that the legislative history of
7405 shows that the section was not intended to be the IRS's
exclusive method for collecting erroneous refunds. Rather,
as a Senate Report explaining the predecessor of 7405
states, "the erroneous refund may [also] be recovered by
assessment in the ordinary manner." S. Rep. No. 960, 70th
Cong., 1st Sess. 42 (1928); see also Brookhurst, Inc. v.

United States, 931 F.2d 554, 557 (9th Cir.) (IRS not limited

to 7405 because imperfect assessment may be reassessed
within three years from date tax return was filed), cert.

denied, 502 U.S. 907 (1991).

-8-
8

administrative collection procedures to recover non-rebate

refunds. The government explains that if an erroneous refund

was a rebate refund, then before the IRS can implement

administrative collection procedures, it must first enter a

supplemental assessment, since the original assessment was

abated to the extent of the refund and does not reflect the

taxpayer's true tax liability; the IRS has the authority to

enter a supplemental assessment under 26 U.S.C. 2604

because erroneous rebate refunds constitute deficiencies

under 26 U.S.C. 6211. The government contends, however,

that if the erroneous refund was a non-rebate refund, then

the original assessment still reflects the taxpayer's total

tax liability and so provides a basis for implementing

administrative collection procedures immediately. The

government argues that not only is there no need for the IRS

to enter a supplemental assessment, but that it actually

could not, since non-rebate refunds do not constitute

deficiencies under 6211 and since the original assessment

still exists and there cannot be two valid assessments for

the same tax liability. The government reasons that if

assessments could be extinguished, then the IRS would not be

able to pursue administrative collection procedures to

recover erroneous non-rebate refunds. Because the government

thinks that administrative collection procedures should be

-9-
9

available for recovering non-rebate refunds, it contends that

assessments cannot be extinguished.

Third, the government cites three cases that

support its view that assessments cannot be extinguished.

See Davenport v. United States, 136 B.R. 125, 127 (W.D. Ky.

1991) (holding that "[a] non-rebate erroneous refund simply

gives back to the taxpayer a part of the taxpayer's assessed

tax and the assessed balance due may be collected by ordinary

collection procedures"); Sanfellipo v. United States, 90-2

U.S. Tax Cas. (CCH) 50,567, at 85,943 (N.D. Cal. 1990)

(taxpayer's payment of assessments "did not extinguish the

liabilities or otherwise foreclose the IRS from attempting to

collect the erroneous refunds"); Groetzinger v. Commissioner,

69 T.C. 309, 315-16 (1977) (viewing all transactions together

to determine that erroneous refund resulted in an

underpayment of tax).

We decline to adopt the government's position that

assessments cannot be extinguished. Instead, we follow the

Fifth and Seventh Circuits, the only circuits to have

addressed this issue thus far, in holding that when a

taxpayer tenders payment on a tax assessment, that payment

extinguishes the assessment to the extent of the payment.

O'Bryant v. United States, 49 F.3d 340, 346 (7th Cir. 1995);

Wilkes, 946 F.2d at 1152; see also Karp v. United States, 868

F. Supp. 235, 237 (N.D. Ill. 1994); United States v. Brown,

-10-
10

782 F. Supp. 321, 324-25 (N.D. Tex. 1990); Rodriguez v.

United States, 629 F. Supp. 333, 344 (N.D. Ill. 1986); United

States v. Young, 79-2 U.S. Tax Cas. (CCH) 9609, at 88,221

(D. Del. 1979); LaFollette v. United States, 176 F. Supp.

192, 195 (S.D. Cal. 1959). We also agree that an erroneous

refund does not revive an extinguished assessment. See

O'Bryant, 49 F.3d at 346; Wilkes, 946 F.2d at 1152. As the

Seventh Circuit explained in O'Bryant, 49 F.3d at 346, there

is a fundamental difference between money taxpayers possess

as the result of an erroneous refund and money they

originally owed the IRS (their tax liability): taxpayers who

receive erroneous refunds owe the IRS "because they have been

unjustly enriched by it, not because they have not paid their

taxes." Thus,

[w]hen a taxpayer mails the IRS a check
in the full amount of his assessed tax
liability, and the IRS cashes it, the
taxpayer's liability is satisfied, and
unless a new assessment is made later on,
any erroneous, unsolicited refund that
the IRS happens to send the taxpayer must
be handled on its own terms, not under
the rubric of the assessed liability.

Id. at 347.

As our discussion indicates, we are unpersuaded by

the government's assertion that assessments are merely

bookkeeping devices that cannot be extinguished by payment.

Like the Seventh Circuit, we think this argument misses the

point.

-11-
11

Regardless of whether the assessment is a
record of the taxpayer's tax liability or
is the liability itself, the liability
has already been satisfied and cannot be
sued on to collect a refund that results
not from that liability or any
reevaluation thereof but from a simple
mistake.

Id. at 346.

We are also unpersuaded by the government's

argument that the difference between rebate and non-rebate

refunds shows that assessments cannot be extinguished. In

our view, once an assessment has been paid, it is

extinguished. If the IRS thereafter issues an erroneous

refund, it may recover that refund under 7405 or under

administrative collection procedures if those are

available.7 As the Seventh Circuit observed in O'Bryant, 49

F.3d at 347,

7. The cases relied on by the government for the proposition
that after issuing an erroneous refund, the IRS may collect
the money either under 7405 or by implementing
administrative collection procedures all involve rebate
refunds, and thus do not hold either that assessments cannot
be extinguished or that non-rebate refunds may be collected
on the basis of the original assessment. See Brookhurst, 931

F.2d at 555; Ideal Realty Co. v. United States, 561 F.2d

1123, 1124-25 (4th Cir. 1977) (per curiam); Warner v.

Commissioner, 526 F.2d 1, 2 (9th Cir. 1975); Black Prince

Distillery, Inc. v. United States, 586 F. Supp. 1169, 1170-71

(D.N.J. 1984) (erroneous refund given on basis of taxpayer's
refund claim that incorrectly reported operating-loss
deductions). In United States v. C & R Invs., Inc., 404 F.2d

314, 315-16 (10th Cir. 1968), which involved a non-rebate
refund, the Tenth Circuit remanded the case to the district
court to determine whether deficiency procedures were
available.

-12-
12

it is an unjustified leap of logic to say
that because nonrebate refunds cannot be
recovered by reassessment, they must be
collectible by resort to the original
assessment. There is no indication in
the Code that Congress intended such a
result and we refuse to reach it,
especially when doing so would require us
to mischaracterize an erroneous refund as
tax liability.

Finally, because their holdings are logically

excluded by ours, we disagree with Davenport, Sanfellipo, and

Groetzinger.

2. Was Clark's 1985 Assessment Extinguished?

Although not invited to do so by either party, we

nonetheless find it necessary to consider whether Clark fully

satisfied the assessment for his 1985 tax liability. The

district court held that the 1985 assessment was extinguished

no later than July 20, 1987, the date on which the IRS

misapplied Clark's $13,415.00 payment to his 1985 account.8

That misapplication, however, had two results: (1) it

satisfied Clark's $1,808.59 outstanding tax liability, and

8. Given the thrust of the government's brief on appeal, and
because the IRS removed the $13,415.00 payment from the
taxpayer's 1985 account and moved it to his 1986 account, we
assume for the purposes of this case that taxpayers may
direct how the IRS must apply their payments. Cf. Rodriguez,

629 F. Supp. at 344 (checks tendered to satisfy outstanding
tax liability for three years extinguished liability for all
three years, even though the IRS applied too much money to
one account and too little to another and therefore issued a
refund); Young, 79-2 U.S. Tax Cas. (CCH) at 88,220-88,221

(payment made towards individual tax liability extinguished
assessment, even though the IRS credited the payment to the
taxpayer's sole proprietorship tax account and refunded it).

-13-
13

(2) it generated a large overpayment, which the IRS refunded

to Clark.

This situation is similar to that considered by the

Fifth Circuit in Wilkes, which involved income taxes paid by

an estate. Because the estate had miscalculated the amount

of tax due, it paid $218.11 less than the actual amount due.

The IRS, however, erroneously credited an unrelated

taxpayer's payment to the estate's account, which had two

results: (1) it satisfied the outstanding $218.11 balance,

and (2) it generated in a large overpayment, which the IRS

refunded to the estate. Several years later, the IRS

realized its mistake and sued the estate to reduce the

assessment to judgment, hoping thereby to collect the entire

tax liability again on the basis of the original

assessment.9 The Fifth Circuit held that the IRS was

entitled to recover only $218.11, the only portion of the

assessment remaining that had not been extinguished by

payment. Wilkes, 946 F.2d at 1152. Accordingly, the Fifth

Circuit entered judgment against the estate, but only for

$218.11, that portion of the assessment that remained

unextinguished. Id.

9. There was some question in that case about whether the
IRS had ever actually entered an assessment. The Fifth
Circuit, however, assumed arguendo that it had. Wilkes, 946

F.2d at 1148.

-14-
14

We follow the Fifth Circuit and hold that

assessments may only be extinguished by payment tendered by

the taxpayer, and not by an IRS error. Prior to the

misapplication, Clark had paid all but $1,808.59 of the

amount due under his 1985 assessment. Accordingly, prior to

the misapplication, Clark had extinguished the assessment,

except for the $1,808.59 still outstanding. It has always

been Clark's position that he never tendered the $13,415.00

towards the 1985 assessment; rather, that amount was always

to be applied to his 1986 liability. Thus, Clark never

tendered the $1,808.59 due under the 1985 assessment.

Because he never tendered the $1,808.59, Clark still remained

liable for it. The IRS was therefore entitled to collect

that amount under the original assessment.

III.
III.

Conclusion
Conclusion

For the foregoing reasons, we affirm the grant of

summary judgment to Clark, but reduce the amount of that

judgment by $1,808.59, plus interest due, which the IRS was

entitled to collect. This case is remanded for action in

accordance with this opinion.

-15-
15