Opinion
01 Civ. 2225 (JGK)
March 21, 2002
OPINION AND ORDER
The plaintiff, Elihu Fier, brings this action pursuant to 28 U.S.C. § 1346 (a)(1) seeking a tax credit from the defendant, the United States, in the amount of $166,219.01, plus accrued interest from the time of remittance, to be applied to his outstanding federal income tax liabilities for the tax year ending December 31, 1982, and for a refund of any remaining amounts. The plaintiff contends that on November 18, 1988, the Internal Revenue Service ("IRS") made an invalid assessment of additional tax liability for him with respect to the tax year ending December 31, 1981 and incorrectly applied $166,219.01 in remittances to his 1981 taxes.
The defendant moves pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss this action for lack of subject matter jurisdiction.
I.
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may consider matters outside the pleadings, such as affidavits, documents and testimony. See e.g., Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), aff'd on remand, 999 F.2d 33 (2d Cir. 1993); Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); John Street Leasehold, LLC v. Capital Mgmt. Res., L.P., 154 F. Supp.2d 527, 533-34 (S.D.N.Y. 2001), aff'd, No. 01-6096, 2002 WL 215977 (2d Cir. Feb. 15, 2002). The standard used to evaluate a Rule 12 (b)(1) motion is thus similar to that used for summary judgment under Rule 56. See Kamen, 791 F.2d at 1011. The plaintiff has the ultimate burden of proving the Court's jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (when subject matter jurisdiction is challenged under Rule 12, plaintiff bears the burden of persuasion); Martin v. Reno, No. 96 Civ. 7646, 1999 WL 527932 (S.D.N.Y. July 22, 1999)
In this case, the pleadings, affidavits, submissions on file and other matters of public record indicate the following relevant facts, which are undisputed unless otherwise indicated. The plaintiff filed his original 1981 tax return on October 15, 1982. See Certificate of Assessments, Payments, and Other Specified Matters for Elihu Fier, Tax Year 1981 ("Cert."), at 1, attached as Ex. A to Declaration of Arnold Rifkin dated August 9, 2001 ("Rifkin Decl."). In this return, the plaintiff reported $307,381.00 in taxable income and $62,806.00 due and owing in federal taxes. See Certified Transcript of Transactions for Elihu Fier, 1981 Tax Year ("Tr."), at 2, attached as Ex. C to Supplemental Declaration of Arnold Rifkin dated January 15, 2002; see also Rifkin Decl. ¶ 5. When he filed this return, the plaintiff paid the entire outstanding amounts ostensibly due. See Rifkin Decl. ¶ 5. On or about February 7, 1983, the IRS assessed the plaintiff's tax liability for the 1981 tax year as only $56,776.30, and issued a refund to the plaintiff that brought his balance down to $0.00 for the 1981 tax year. See id.
On or about January 26, 1983, the Examination Division of the IRS commenced an audit of a tax shelter ("Degree Associates") in which the plaintiff had invested and counted as a loss on his 1981 tax return. See id. ¶ 7. The IRS is ordinarily required to make any assessments related to a tax year within three years of the time when a taxpayer filed the relevant return, which would have been by October 15, 1985 in this case. See 26 U.S.C. § 6501 (a). However, if both the taxpayer and the IRS agree to an extension within this time period, the time for such an assessment can be extended to any time agreed upon between the parties. See 26 U.S.C. § 6501 (c)(4)(A). The plaintiff agreed to such an extension with regard to his 1981 tax audit until December 31, 1999. See Rifkin Decl. ¶ 8. The parties dispute whether this extension was executed by October 15, 1985.
On or about June 1, 1987, the Examination Division closed its audit of the plaintiff's 1981 taxes, finding that the plaintiff did in fact owe additional amounts related to his claimed tax shelter losses, and transmitted the matter to the Office of Appeals. See Cert. at 3; Tr. at 4. On or about January 4, 1988, the plaintiff remitted $100,000.00 to the IRS. Cert. at 3-4; Tr. at IRS 4. Most of the original underlying documents in this case have been lost or destroyed, and neither party can produce them. However, the IRS has produced a certified copy of the plaintiff's Certificate of Assessments, Payments and Other Specified Matters for the 1981 tax year, as well as a certified copy of his official Transcript of Transactions relating to that tax year. The Transcript indicates that on September 20, 1988, the plaintiff executed a Form 870-AD agreement for the 1981 tax year, which is an agreement that waives restrictions on the assessment and collection of any deficiency found and agrees to pay the full amount of the deficiency. See Tr. at 4;see also Rifkind Decl. ¶ 11 (explaining content of Form 870-AD). The plaintiff denies ever having signed this agreement. See Declaration of Elihu Fier dated November 20, 2001, at ¶ 10.
In response to questioning at oral argument, the Government has produced a standard 870-AD Form. The standard form, which is to be signed by the taxpayer, states that "the undersigned offers to waive the restrictions provided in section 6213(a) of the Internal Revenue Code of 1986, or corresponding provisions of prior internal revenue laws, and to consent to the assessment and collection of the following deficiencies with interest as provided by law." Form 870-AD, attached as Ex. A to Letter from Rebecca C. Martin to the Court dated March 8, 2002. The standard form continues, "[t]he undersigned offers also to accept the following overassessments as correct," and then allows space to list specific amounts related to specific tax years for different kinds of taxes. Id.
On November 18, 1988, the IRS assessed the plaintiff an additional tax liability of $162,530.94, including interest and penalties, for the 1981 tax year. See Rifkin Decl. ¶ 12. The Transcript and Certificate indicate that the IRS sent a notice of assessment to the plaintiff on that same day indicating a deficiency of $162,530.94. See Cert. at 3; Tr. at 4. According to the Transcript and Certificate, the IRS then sent the plaintiff another notice of deficiency on January 30, 1989, which listed only $62,530.94 as the amount due because the IRS had credited the plaintiff's prior remittance of $100,000.00 to his 1981 tax liabilities.See Cert. at 4-5; Tr. at 6; Rifkin Decl. 6 ¶ 15. The Transcript and Certificate indicate that the IRS then sent seven subsequent notices of deficiency to the plaintiff between January 30, 1989 and May 29, 1989. On or about August 14, 1989, the plaintiff remitted $66,219.01 to the IRS, which was the exact amount due on that date for the deficiency on his 1981 assessment, once accrued interest was taken into account. See Cert. at 4; Tr. at 5; Rifkin Decl. ¶ 13. The Transcript and Certificate indicate that no further notices were sent to the plaintiff regarding any outstanding liabilities for the 1981 tax year. There is also no record of any challenge to the additional assessment prior to the activities beginning in 2001 related to this case.
The Transcript and Certification break this amount down into $68,097.00 in tax liability, $8,512.00 in penalties, and $85,921.94 in accrued interest. See Cert. at 3; Tr. at 4.
On November 24, 1998, a grand jury indicted the plaintiff on two counts of having employed false documents or made false statements to the IRS in violation of 18 U.S.C. § 1001 in connection with payments he alleged he had made to cure a related deficiency in his taxes for the 1982 tax year related to the same tax shelter, "Degree Associates," in which he had invested in 1981. See Indictment, attached as Ex. B to Declaration of Rebecca C. Martin dated August 13, 2001 ("Martin Decl."). The Indictment charged the plaintiff with unlawfully, knowingly and willfully altering a canceled check for $62,000.00 to the IRS dated April 16, 1990, which had been used to pay taxes unrelated to the "Degree Associates" tax shelter, by placing the word "Degree" on the memo line and then using this canceled check to bolster a claim to the IRS that he had already paid his 1982 tax deficiency related to this tax shelter, when he knew he had not. See id. at 2-5. During his trial, the plaintiff testified that he had confused the altered $62,000.00 check with the $66,219.01 check and that he had intended the $66,219.01 check that had been applied to his 1981 taxes to settle or resolve his tax liability relating to Degree Associates for the 1982 tax year. See Martin Decl. Ex. D at 220-21, 227-28. The plaintiff was nevertheless convicted on both counts in the Indictment and judgment was entered on September 9, 1999. See Martin Decl. Ex. C.
On July 13, 1998, the plaintiff filed a petition in the United States Tax Court challenging his liability for the 1982 tax deficiency. See Martin Decl. Ex. E. In the course of the proceedings, the plaintiff argued that he had issued the $66,219.01 check "in payment of what he believed to be required to close the year 1982," rather than the 1981 year. Martin Decl. Ex. G at 2. The Tax Court discredited the plaintiff's allegation and denied the plaintiff's challenge. See Fier v. Commissioner of Internal Revenue, No. 17836-88, slip order (T.C. March 3, 2000), attached as Ex. F. to Martin Decl.
On June 28, 2000, the plaintiff filed a claim for a refund of his 1981 taxes with this Court. See Docket Sheet for Fier v. United States, No. 00 Civ. 4769, attached as Ex. H to Martin Decl. This action was discontinued without prejudice on September 11, 2000 because the plaintiff had not made any prior request with the IRS. Id. The plaintiff subsequently made such a request, which the IRS disallowed. See Rifkin Decl. Ex. B at 6. On March 15, 2001, the plaintiff brought the present action.
II.
The defendant argues that this action should be dismissed for lack of subject matter jurisdiction because the plaintiff did not raise his claim within the statute of limitations periods set forth in 26 U.S.C. § 6511, which governs claims for tax credits and refunds and places conditions on the Government's consent to be sued for such claims.
It is well established that the United States, as sovereign, is immune from suit unless it enacts a statute consenting to be sued. See Kulawy v. United States, 917 F.2d 729, 733 (2d Cir. 1990). Waivers of sovereign immunity are to be strictly construed. See Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994) (per curiam). They must be unequivocally expressed rather than implied. See United States v. King, 395 U.S. 1, 4 (1969).
With regard to claims for tax credits and refunds, the United States has consented by statute to being sued in district court for "the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws. . . ." 28 U.S.C. § 1346 (a)(1); see also Weisbart v. United States Dep't of Treasury, 222 F.3d 93, 94 (2d Cir. 2000); United States v. Forma, 42 F.3d 759, 763 (2d Cir. 1994). There are, however, strict conditions attached to that consent. See Weisbart, 222 F.3d at 94 (collecting cases). Failure to comply with any of these conditions is a jurisdictional defect, and, hence, the taxpayer bears the burden of demonstrating compliance to survive a motion to dismiss under Rule 12(b) (1). See, e.g., Magnone v. United States, 902 F.2d 192, 193 (2d Cir. 1990) (per curiam).
Among the relevant conditions are restrictions on the time periods, as set forth in 26 U.S.C. § 6511, in which a taxpayer can bring a claim for a tax credit or refund. See United States v. Dalm, 494 U.S. 596, 602 (1990) ("[U]nless a claim for refund of a tax has been filed within the time limits imposed by § 6511(a), a suit for refund, regardless of whether the tax is alleged to have been `erroneously,' `illegally,' or `wrongfully collected,' §§ 1346(a)(1), 7422(a), may not be maintained in any court."). Section 6511(a) states, in particular, that if a tax return was filed, then a "[c]laim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later. . . ." If no return was filed by the taxpayer, then any such refund claim must be filed "within 2 years from the time the tax was paid." Id. In either event, under § 6511(b)(1), "[n]o credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in [ 26 U.S.C. § 6511 (a)] for the filing of a claim for credit or refund, unless a claim for credit or refund is filed by the taxpayer within such period."
The plaintiff indisputedly remitted $100,000.00 to the IRS on January 4, 1988 and $66,219.01 on August 14, 1989, and these amounts indisputedly covered to the penny the liabilities that the IRS had assessed against him on November 18, 1988 for the 1981 tax year. The Government argues that these remittances were payments of the plaintiff's 1981 tax liabilities, and, hence, that the plaintiff's time to challenge the assessment to which the remittances were applied expired on August 14, 1991 at the latest. The plaintiff responds, in essence, that he can still challenge the November 18, 1988 assessment because he never paid it. Although he modified his position with respect to the second remittance at oral argument, the plaintiff argues in his papers that his remittances were merely deposits in the form of cash bonds, rather than payments, and that these remittances merely stopped the accrual of interest and penalties on his outstanding tax liabilities but did not begin the statute of limitations for challenging the assessment relating to his 1981 taxes. The plaintiff argues that the relevant statute of limitations in this case is thus the more general six-year period set forth in 28 U.S.C. § 2401 (a) for civil actions against the United States, which period does not commence under the governing rules of accrual until a plaintiff knows or has reason to discover that he was injured by the governmental action. See, e.g., Polanco v. United States Drug Enforcement Agency, 158 F.3d 647, 652, 654 (2d Cir. 1998)
The plaintiff is correct that under governing IRS regulations, a taxpayer can make a "deposit" with the IRS before a deficiency has been assessed or while challenging a deficiency in Tax Court, and the deposit will prevent the accrual of interest and penalties on any deficiency that is ultimately found. See generally Rev. Proc. 84-58, 1984-2 C.B. 501, 1984-33 I.R.B. 9, 1984 WL 260577 (I.R.S. R.P.R.). Unlike a payment, "a deposit is not subject to a claim for credit or refund as an overpayment." Id. at § 4.02(1). Rather, "[t]he taxpayer may request return of all or part of the deposit at any time before the Service is entitled to assess the tax" and "[t]hat amount will be returned to the taxpayer, without interest, unless the Service determines that assessment or collection of the tax determined to be due would be in jeopardy, or that the amount should be applied against any other liability." Id. The first question in this case is thus whether the two remittances in question were payments, as the Government argues, or deposits, as the plaintiff argues.
The distinction between tax deposits and payments originated withRosenman v. United States, 323 U.S. 658 (1945), in which the Supreme Court held that a remittance that had been made more than three years before a final assessment of tax liability was a "deposit" in the form of a cash bond, which had stopped the accrual of interest and penalties on the deficiency that was ultimately assessed but that did not begin the three-year statute of limitations to challenge the assessment when the deposit was first made. See id. at 663. The Court determined that the remittance was a deposit based on an evaluation of the circumstances of the case — specifically, (1) the relative timing of the remittance and the disputed IRS assessment, which came years later, (2) the plaintiffs' intent in making the remittance, and (3) how the IRS treated the remittance upon receipt. See id. at 661-63. The Court observed that "[n]ot until [the assessment was finally made] was there such a claim as could start the time running for presenting [a challenge to the assessment.]" Id. at 661. Much like the assessment in this case, the assessment in Rosenman was ultimately larger than the taxpayers had remitted prior to the assessment, and, as in this case, the plaintiffs in Rosenman paid the balance shortly after the assessment was made. The Supreme Court held in Rosenman that "[i]n any responsible sense payment was . . . made by the application of the balance credited to the petitioners in the suspense account [related to the first deposit] and by the additional payment [made after the assessment.]" Id. (emphasis added). Hence, the holding in Rosenman was that the original remittance was a deposit until the time of the assessment, at which point it was converted into a payment and the 3-year statute of limitations for challenging the assessment began to run.
The Court of Appeals for the Second Circuit has rejected the idea thatRosenman erects a per se rule that remittances made prior to an assessment must be considered deposits, but has not yet identified the test to use to decide whether such a remittance is a deposit or a payment. See Ertman v. United States, 165 F.3d 204, 206-07 (2d Cir. 1999). The answer to this question will often depend upon the facts and circumstances of the case, as elaborated in Rosenman. See Ertman, 165 F.3d at 207 (noting that "various circuits have construed Rosenman as suggesting that courts look to the facts and circumstances of an individual case to determine whether a remittance is a deposit or a payment"). The Second Circuit Court of Appeals has made it clear, however, that "[i]n cases where the . . . Internal Revenue Code explicitly defines a particular type of remittance as a payment, a factual inquiry is unnecessary to determine whether a remittance is a payment or a deposit, for in such cases the statutory delineation dominates over the circumstances of the particular remittance at issue."See Ertman, 165 F.3d at 208-09.
With regard to the first remittance for $100,000.00, it is unnecessary to decide whether this remittance was originally made as a deposit or a payment because, even if it was originally a deposit, it was clearly converted into a payment in 1988 under applicable IRS regulations. Sections 4.02(2) and (3) of Revenue Procedure 84-58 govern the status of deposits upon completion of an IRS examination. Section 4.02(2) states that if the taxpayer has "execute[d] a waiver of restrictions on assessment and collection of the deficiency or otherwise agrees to the full amount of the deficiency, an assessment will be made and any deposit will be applied against the assessed liability as a payment of tax as of the date the assessment was made." (Emphasis added). The provision continues: "In such a case, no notice of deficiency will be mailed and the taxpayer will not have the right to petition the Tax Court for a redetermination of the deficiency." Id. If, on the other hand, the taxpayer has not executed any such waiver, then under § 4.02(3), "the Service will mail a notice of deficiency and the taxpayer will have the right to petition the Tax Court" and "[t]hat part of the deposit that is not greater than the deficiency proposed plus any interest that has accrued on the deficiency will be posted to the taxpayer's account as a payment of tax at the expiration of the 90 or 150-day period unless the taxpayer rerequests in writing before the date that the deposit continue to be treated as a deposit after the mailing of the notice of deficiency." (Emphasis added). There is nothing in the rules that allows a taxpayer to maintain a remittance as a deposit rather than a payment after an assessment has been made and the period for petitioning the Tax Court to challenge the assessment has passed.
In this case, the Transcript of Transactions for the plaintiff's 1981 tax year indicates that the plaintiff executed a waiver of restrictions on assessment and collection for the 1981 deficiency and agreed to pay the full amount of the deficiency by filing a Form 870-AD on September 20, 1988. Under Section 4.02(2), and under Rosenman, the $100,000.00 would have thus been converted automatically into a payment immediately upon assessment on November 18, 1988 at the latest, when the $100,000.00 was applied to his 1981 taxes, regardless of whether the IRS sent any notice to the plaintiff. The plaintiff claims that he never signed a Form 870-AD, but, even if this were true, the $100,000.00 would have been applied to his 1981 tax liabilities as a payment no later than 150 days after the assessment was made on November 18, 1998 under § 4.02(3), unless the plaintiff had requested in writing before that date that the deposit continue to be treated as a deposit. The plaintiff has produced no evidence that he made any such request, and the Transcript and Certificate do not reflect any such filing. Hence, the plaintiff has not met his burden of establishing that his first remittance for $100,000.00 remained a deposit rather than being converted into a payment in 1988.
The plaintiff's only evidence that he did not execute a valid Form 870-AD is his own sworn testimony. The Transcript indicates that a valid form was filed, however, and the official act of recording this agency form is entitled to a presumption of validity. See, e.g., USPS v. Gregory, 122 S.Ct. 431, 436 (2001). The plaintiff's testimony is not necessarily inconsistent with the Transcript, because the plaintiff does not deny that he executed a valid power of attorney on March 21, 1987, who may have executed a Form 870-AD on his behalf. See Tr. at 4; Rifkin Decl. ¶ 9.
With respect to the plaintiff's second remittance, this remittance was made on or about August 14, 1989, approximately nine months after his additional tax liability for 1981 was assessed. There is nothing in the IRS regulations, in Rosenman, or in the governing caselaw that allows a taxpayer to remit money to the IRS as a "deposit" where, as here, an assessment has already been made and the taxpayer has not challenged the assessment in Tax Court within the relevant time periods for a challenge. At oral argument, the plaintiff conceded that he could not credibly claim that this remittance was anything other than a payment, and he withdrew his earlier argument from his briefs to the contrary. The plaintiff argued instead that the remittance was intended as a payment for his 1982 liabilities rather than his 1981 liabilities. This precise claim has already been heard and rejected by the Tax Court. See Fier v. Commissioner of Internal Revenue, No. 17836-88, slip order (T.C. March 3, 2000). In any event, the plaintiff's concession that this remittance, filed approximately eleven years before the commencement of this action, was a payment, establishes that this Court lacks subject matter jurisdiction to hear any claim for a credit or refund with regard to this second payment.
Finally, even if it were possible under the IRS regulations to deem the $100,000.00 and $66,209.01 that the plaintiff remitted as deposits after the assessment was made, the facts and circumstances in this case indicate that they should be construed as payments. As discussed above, courts deciding whether a remittance is a payment or a deposit under the facts and circumstances of a case generally consider: (1) the timing of the remittance relative to a disputed IRS assessment (2) the plaintiff's intent in making the remittance, and (3) how the IRS treated the remittance upon receipt. See, e.g., Ertman, 165 F.3d at 207. The Transcript and Certificate indicate that the IRS treated both remittances as payments, and the plaintiff does not seriously dispute this fact.
The plaintiff claims that he did not intend for these remittances to be applied to his 1981 taxes as payments, but the record does not support his claim. The plaintiff made his first payment before the IRS had issued a final notice of deficiency but after the Examination Division had completed its audit and forwarded a report of its findings to the Office of Appeals. Under 26 C.F.R. § 601.105 (c), the Examination Division is required to furnish the taxpayer with a report of its findings at this time, and an agency's actions are entitled to a presumption of regularity, thus providing evidence that the Examination Division notified the plaintiff of the proposed liability before he remitted the $100,000.00. The plaintiff also clearly knew about the audit because he had signed an extension of time for the IRS to conduct it. In any event, the Transcript and Certificate indicate that the plaintiff subsequently conceded this liability and the IRS notified him on November 18, 1988 of the full deficiency found in the audit. According to the Transcript and Certificate, the IRS provided the plaintiff with a second notice of deficiency on January 30, 1989, which listed only $62,530.94 as the amount due, because the IRS had credited the plaintiff's prior remittance of $100,000.00 to his 1981 tax liabilities. The plaintiff never complained about this application of $100,000.00 to his 1981 tax liabilities until 2000, when he filed his first lawsuit in federal court.
The Transcript and Certificate then indicate that the IRS sent out seven more notices of deficiency before August 14, 1989, for the amounts then owing with accrued interest. When the plaintiff remitted the $66,219.01, this amount reduced his tax obligations for the 1981 tax year to zero to the penny, thus rendering incredible any claim that the plaintiff was trying to settle a different obligation or that the plaintiff was unaware of the obligation and was merely trying to make an unrelated deposit. The fact that the $66,219.01 remittance satisfied the deficiency for his 1981 taxes to the penny also makes it clear that the plaintiff was well aware that the prior $100,000.00 remittance had been used to satisfy his 1981 deficiency and that only $66,219.01 remained, which he then was trying to settle with his payment.
The plaintiff concedes further that he did not specifically designate either of the checks as "deposits in the form of a cash bond," as Revenue Procedure 84-58 often requires for a remittance to be deemed a deposit. Although the plaintiff argues that the Transcript and Certificate may contain some errors, he has not pointed to anything that would indicate that these documents are genuinely untrustworthy. He has also failed to produce any better evidence. It is the plaintiff's burden to establish subject matter jurisdiction and the plaintiff has produced no material evidence suggesting that his remittances were not intended to be payments once a final assessment was made.
For all of the foregoing reasons, the plaintiff paid the entire assessment made on November 18, 1988 by August 14, 1989, more than eleven years before he filed the present action. Accordingly, this Court lacks the subject matter jurisdiction to hear the present challenge.
III.
In any event, even if the statute of limitations had not run in this case, the "look back" provisions in 26 U.S.C. § 6511 (b)(2)(B) provide limitations on the payments that a plaintiff can recover in a tax credit or refund action. This provision states, in particular, that "[i]f [a] claim was not filed within [the] 3-year period [after filing a tax return], the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 years immediately preceding the filing of the claim." For the reasons discussed above, the plaintiff made the payments that he now seeks to recover and apply to his 1982 taxes more than eleven years before filing the present action. Hence, the "look back" provisions in § 6511(b) prevent plaintiff from bringing an action to recover those payments, and this Court lacks the jurisdiction to decide any such claims for recovery.
IV.
Finally, even if this Court were to have subject matter jurisdiction over this action despite the timing restrictions set forth in § 6511, the plaintiff is incorrect that his claim would be timely under the more general statute of limitations for civil suits against the federal government, which is set forth in 28 U.S.C. § 2401. This section states, in relevant part, that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues."
The plaintiff argues that his cause of action only accrued for § 2401 purposes when he knew or had reason to discover all of the elements of his cause of action. See, e.g., Polanco, 158 F.3d at 654 (cause of action accrues when plaintiff has a "complete and present" cause of action and "can file suit and obtain relief" (citation and quotation marks omitted)). He argues, moreover, that he neither knew nor had reason to discover his present cause of action until he learned in discovery in his 1998 Tax Court proceedings that the extension of assessment he had executed may not have been fully executed until December 26, 1985, which, he argues, would have made both the extension and the subsequent assessment for his 1981 taxes invalid under 26 U.S.C. § 6501 (c)(4) (A).
There is no merit to the plaintiff's argument. The plaintiff's cause of action is a challenge to the assessment of additional liability for the 1981 tax year pursuant to 28 U.S.C. § 1346 (a)(1). This cause of action accrued when he either knew or should have known that the assessment was complete, because at that time he had a complete and present cause of action and could have filed suit to challenge the assessment. To the degree that he needed to know the date his extension was executed, he could have obtained the extension through discovery if he had brought a timely action. No reasonable juror could conclude from the present record that the plaintiff knew of the assessment any later than 1989, and the plaintiff's present action is thus barred by § 2401 as well.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss this action for lack of subject matter jurisdiction is granted. The Clerk of the Court is directed to enter judgment dismissing this action and to close this case.
SO ORDERED.