A taxpayer is financially disabled if they are unable to manage their “financial affairs by reasons of a medically determinable physical or mental impairment of the Case 2:16-cv-05257-GAM Document 7-1 Filed 01/06/17 Page 10 of 13 11 individual 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.” 26 U.S.C. § 6511(h)(2)(A). A taxpayer is not considered to have such impairment unless he or she can satisfy the proof requirements.

A taxpayer is financially disabled if he is “unable to manage his financial affairs” due to a medically determinable physical or mental impairment that could result in death or which can be expected to last for a continuous period of more than one year. 26 U.S.C. § 6511(h)(2)(A). A taxpayer is not considered financially disabled unless proof of the existence of the impairment is “furnished in such form and manner as the Secretary may require.”

Because 26 27 28 9 This generous 20% assumption accounts for plaintiffs' wilingness in negotiations to give up pre-judgment interest and the potential value of any state tax savings.10 12cv-1718 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; DECLARATIONS OF DAVID J. VENDLER; MICHAEL BROWN, JEFFREY POINDEXTER; MARIA GUREVICH; RICHARD HORN AND JOHN J. D' ANDREA, Ph.D. Case 3:12-cv-01718-GPC-BLM Document 58 Filed 12/13/13 Page 19 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the three-year statute of limitations for filing amended tax returns - 26 U.S.C. § 6511 - delays in concluding this case would have resulted in losing the potential to recover any lost deductions from the IRS. This would have made resolution of the case substantially more difficult since funds to recompense Class Members for such years would have had to come from BANA.

Section 6511(a) provides that if a taxpayer filed a return, it must file a claim for credit or refund within: 1) three years from the time the return was filed; or 2) two years from the time the tax was paid, whichever is later. 26 U.S.C. § 6511(a). In this case, Plaintiff filed its refund claim on July 2, 2015, (dkt.

.” 26 U.S.C. 6511. Plaintiff apparently filed his tax return for the relevant period prior to 1997.

Plaintiff has not established she fully paid the amount of tax due and owing for which she seeks the refund as required under Flora. Further, she has not she they filed an administrative complaint for refund with the IRS, and have waited the required time period before suing the United States as enumerated under 26 U.S.C. §§ 6511(a), 6532, and 7422(a) in the instant Complaint. Plaintiff needs to comply with these requirements before this Court has jurisdiction over the case. As such, the court must dismiss this case as the Court lacks subject matter jurisdiction in this matter as plaintiff has not shown a waiver of sovereign immunity by the United States.

Plaintiffs have not established they have fully paid the amount of tax due and owing for which they seek the refund as required under Flora. Further, they have not established they filed an administrative complaint for refund with the IRS, and have waited the required time period before suing the United States as enumerated under 26 U.S.C. §§ 6511(a), 6532, and 7422(a). Plaintiffs need to comply with these requirements before this Court has jurisdiction over the case.

Under section 6511, a refund claim must be filed with the Service within either three years from the date the tax return was filed or two years from the date the taxes were paid, whichever expires later. 26 U.S.C. § 6511(a), (b). The plaintiff’s refund claim for 2005 was untimely, regardless of whether the two or three year period is applied.

That extension increases the look-back period by an additional six months, i.e., to June 26, 2009. Hence, under 26 U.S.C. Section 6511(b)(1), plaintiff could only have recovered payments made on or after that date. The Certificates of Assessments and Payments for 2008 and the Internal Revenue Code establish that the payments underlying Plaintiff’s refund claim were all made, or are deemed to have been paid, prior to June 26, 2009.

However, 26 U.S.C. § 6511 allows a taxpayer to file an administrative claim for credit or refund of a tax overpayment and 26 U.S.C. § 7422(a) authorizes suits for recovery of any tax alleged to have been erroneously or illegally assessed or collected. 26 U.S.C. §§ 6511 and 7422(a). In addition, the collection due process procedures under 26 U.S.C. §§ 6320 and 6330 were previously made available to Ms. Mamedova with respect to the income tax assessments for 2009 and 2010.