FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 30, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SHUNG H. CHAN,
Plaintiff - Appellant,
v. No. 16-4197
(D.C. No. 2:15-CV-00739-DN)
COMMISSIONER OF INTERNAL (D. Utah)
REVENUE,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
_________________________________
Shung H. Chan appeals the district court’s order dismissing his lawsuit against
the Commissioner of Internal Revenue. We affirm.
I. Background
Chan sued the Commissioner seeking a refund of his 2008 income taxes. The
Commissioner moved to dismiss, arguing the district court lacked subject matter
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction because Chan did not file a timely refund claim under 26 U.S.C. § 6511.
The district court agreed, and dismissed the case.
Chan argues the district court erred by (1) dismissing the case for lack of
jurisdiction and (2) failing to rule on his motion to file documents under seal.1 Chan
also asks us “[t]o transfer the case to a different court if necessary/applicable.”
Opening Br. at 13.
II. Jurisdiction
The district court found it lacked subject matter jurisdiction because Chan did
not file a timely refund claim with the IRS, which is a jurisdictional prerequisite to a
refund suit, see 26 U.S.C. § 7422(a); Comm’r v. Lundy, 516 U.S. 235, 240 (1996).
We review this determination de novo, COPE v. Kan. State Bd. of Educ., 821 F.3d
1215, 1220 (10th Cir. 2016), and agree that jurisdiction is lacking.
Two provisions govern the timeliness of a refund claim. Lundy, 516 U.S. at
240. First, the taxpayer must file the claim within three years after filing his tax
return or two years after paying the tax, whichever happens later. 26 U.S.C.
§ 6511(a). Second, if the taxpayer filed the claim within the three-year period, the
amount of the refund is limited to the portion of the tax paid in the three years
“immediately preceding the filing of the claim . . . plus the period of any extension of
time for filing the return.” § 6511(b)(2)(A). But if the taxpayer did not file the claim
within the three-year period, the amount of the refund is limited to the portion of the
1
Chan appears pro se, so we liberally construe his pleadings and hold them to
less stringent standards than those drafted by lawyers. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
2
tax paid in the two years “immediately preceding the filing of the claim.”
§ 6511(b)(2)(B).
Chan does not say when he paid his 2008 income taxes. His return was due on
April 15, 2009, see 26 U.S.C. § 6072(a), but according to Chan, he applied for a six-
month extension and filed a timely return on October 15, 2009. He subsequently
filed two refund claims, the first on October 15, 2012, and the second on April 15,
2013.
Chan filed his first refund claim exactly three years after his return.
Nevertheless, the district court found this claim was untimely under § 6511(a). It
reasoned that Chan had failed to show he actually applied for an extension, so his
return was late. We disagree with this analysis. Nothing in the language of
§ 6511(a) suggests a return must be timely to trigger the three-year limitation period
for filing a refund claim, see § 6511(a), and courts have almost unanimously held
otherwise, see Richards v. Comm’r, 37 F.3d 587, 590 n.7 (10th Cir. 1994) (citing
Rev. Rul. 76-511, 1976-2 C.B. 428, and recognizing, “if a claim is filed
simultaneously with a return, then the courts that have considered this issue have
almost unanimously held the claim is considered filed within three years from the
filing of the return even though the return was due years earlier”); Omohundro v.
United States, 300 F.3d 1065, 1069 (9th Cir. 2002) (“[U]nder I.R.C. § 6511(a), a
taxpayer’s claim for credit or a refund is timely if it is filed within three years from
the date his income tax return is filed, regardless of when the return is filed.”);
Weisbart v. U.S. Dep’t of Treas., 222 F.3d 93, 95 (2d Cir. 2000) (same), abrogated
3
on other grounds by United States v. Mead Corp., 533 U.S. 218, 234 (2001).
Because Chan filed his first refund claim within three years after filing his 2008 tax
return, this claim was timely under § 6511(a) whether or not he applied for an
extension.
Indeed, the Commissioner never argued otherwise.2 Rather, he argues Chan’s
first refund claim was untimely under § 6511(b). We agree. As noted above, even
when a taxpayer files a refund claim within § 6511(a)’s three-year period,
§ 6511(b)(2)(A) limits the amount of any refund to the portion of the tax paid in the
three years prior to the claim, plus any extension for filing the return. Chan has
never alleged that he paid any tax between April 15, 2009, and April 15, 2013, so his
first refund claim was untimely under § 6511(b).
The district court did not specifically address Chan’s second refund claim, but
by finding his first refund claim untimely under § 6511(a), it implicitly found his
second claim—which was filed six months later—untimely for the same reason.
There is no dispute that Chan filed his second claim more than three years after his
return, so we agree this claim was untimely under § 6511(a).
In an effort to avoid these time limits, Chan argues that “from 2008 to 2016”
he was financially disabled under § 6511(h). Opening Br. at 11. That subsection
suspends the time limitations in § 6511(a) and (b) during any period an “individual is
unable to manage his financial affairs by reason of a medically determinable physical
2
The Commissioner argued in his motion to dismiss that Chan’s second refund
claim was untimely under § 6511(a) and his first refund claim was untimely under
§ 6511(b). See R. Vol. 1 at 13-14.
4
or mental impairment . . . which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.”
§ 6511(h)(1), (2)(A). Chan made this argument in the district court and the
Commissioner responded to it, but neither the magistrate judge nor the district court
addressed it. Although it is our general practice to remand for the district court to
resolve such issues in the first instance, see Evers v. Regents of Univ. of Colo.,
509 F.3d 1304, 1310 (10th Cir. 2007), we exercise our discretion to address the issue
because it has been fully briefed and presents only a question of law, see Singleton v.
Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to the discretion of the
courts of appeals, to be exercised on the facts of individual cases.”); Trierweiler v.
Croxton & Trench Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996) (resolving an
issue that involved “a purely legal question” for the first time on appeal).
Under § 6511(h)(2)(A), “[a]n individual shall not be considered to have [a
financially disabling] impairment unless proof of the existence thereof is furnished in
such form and manner as the [IRS] may require.” The IRS, in turn, requires a
physician’s statement containing certain information “to be submitted with a claim
for . . . refund of tax to claim financial disability.” Rev. Proc. 99-21, 1999-17 I.R.B.
18. Specifically, the statement must come from a physician “qualified to make the
determination” and set forth:
(a) the name and a description of the taxpayer’s physical or
mental impairment;
5
(b) the physician’s medical opinion that the physical or mental
impairment prevented the taxpayer from managing the taxpayer’s
financial affairs;
(c) the physician’s medical opinion that the physical or mental
impairment was or can be expected to result in death, or that it
has lasted (or can be expected to last) for a continuous period of
not less than 12 months;
(d) to the best of the physician’s knowledge, the specific time
period during which the taxpayer was prevented . . . from
managing the taxpayer’s financial affairs; and
(e) [a] certification, signed by the physician.
Id.
Chan alleged in his complaint that he submitted “a physician’s statement
proving financial disability” with his April 15, 2013, refund claim. See R. Vol. 1
at 5. But he does not describe the contents of the statement or argue that it met these
requirements, so his allegations are insufficient to show financial disability under
§ 6511(h). See § 6511(h)(2)(A). Although Chan argues he now “has enhanced
evidence for claiming financial disability,” see Opening Br. at 5, the district court
cannot make a determination of financial disability if he did not first provide the
requisite proof to the IRS, see Abston v. Comm’r, 691 F.3d 992, 995 (8th Cir. 2012).
In short, both of Chan’s refund claims were untimely, and Chan failed to
allege facts sufficient to show financial disability. We therefore agree with the
district court that it lacked jurisdiction over Chan’s lawsuit.
III. Motion to File Under Seal
Chan argues the district court erred by failing to rule on his motion to file
certain documents under seal. Specifically, Chan sought “leave to file materials
pertaining to taxpayer and/or medical information under seal due to their sensitivity.”
6
R. Vol. 1 at 42. The district court did not rule on Chan’s motion, but based on its
disposition of the case, we deem the motion denied. Under the circumstances, this
would not have been an abuse of discretion. See United States v. Pickard, 733 F.3d
1297, 1302 (10th Cir. 2013) (“We review for an abuse of discretion the district
court’s decisions regarding whether to seal or unseal documents.”).
First, Chan has not shown sealing the documents would have been warranted.
There is “a common-law right of access to judicial records.” Id. “Although this right
is not absolute, there is a strong presumption in favor of public access.” Id. (internal
quotation marks and citations omitted). A party seeking leave to file documents
under seal “bears the burden of showing some significant interest that outweighs the
presumption” of public access. Id. (internal quotation marks omitted). Chan does
not identify the documents he seeks to file under seal with any specificity, nor does
he explain why his interest in keeping them sealed outweighs the presumption of
public access.
Second, we have no reason to believe that allowing Chan to file the documents
under seal would have changed the result. See Fed. R. Civ. P. 61 (“[T]he court must
disregard all errors and defects that do not affect any party’s substantial rights.”).
Chan argues the documents would have shown he sought an extension to file his
2008 tax return, but this is irrelevant to the timeliness of his refund claims. Chan’s
first claim was untimely because he did not allege that he paid any tax in the three (or
even three-and-a-half) years prior to the claim, see § 6511(b)(2)(A), and his second
claim was untimely because Chan filed it more than three years after his return, see
7
§ 6511(a). Both are true whether or not Chan had an extension. Chan also argues he
would have submitted evidence showing he “was financially disabled from 2008 to
2016,” Opening Br. at 11, but he does not allege that he provided this evidence to the
IRS with his refund claims. As explained above, Chan’s failure to do so precludes
the district court from making a determination of financial disability. See Abston,
691 F.3d at 995.
IV. Conclusion
We affirm the district court’s order of dismissal.
We deny Chan’s request to transfer the case to another court. Because Chan
did not file a timely refund claim with the IRS, he cannot maintain his refund suit in
any court. See § 7422(a).
Entered for the Court
Mary Beck Briscoe
Circuit Judge
8