ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-3493)
Before Weis and Garth, Circuit Judges, and Wyzanski,*fn* Senior District Judge.
Taxpayer Binder appeals from the District Court's judgment dismissing, under Fed.R.Civ.P. 12(b)(6), his complaint on the ground that he has not stated a claim upon which relief can be granted.
Plaintiff construes his complaint as alleging a cause of action, within the jurisdiction conferred by 28 U.S.C. § 1340 and 26 U.S.C. § 7422, for the recovery of moneys which he and his employer paid to the District Director of Internal Revenue as escrow payments of estimated income taxes and withholding taxes which plaintiff might owe for the years 1966 and 1971.
The government contends that the only facts alleged in the complaint contradict plaintiff's claim that he or his employer made escrow payments, but, on the contrary, set forth a claim for the refund of tax payments which is defective because the claim was not made within the time limited by § 6511(b) (2)(A) of the Internal Revenue Code of 1954, 26 U.S.C. § 6511(b)(2)(A).
The District Court construed plaintiff's complaint as stating merely a purported claim to recover advance payment of taxes, and held the claim barred by 26 U.S.C. § 6511 and § 6513.
For convenience we here set forth the relevant parts of § 6511 of the Internal Revenue Code of 1954 (26 U.S.C.):
Sec. 6511 of the Internal Revenue Code of 1954 (26 U.S.C.) (as amended by Secs. 82(a), 82(b) and 82(c), Technical Amendments Act of 1958, P.L. 85-866, 72 Stat. 1606).
(a) Period of Limitation on Filing Claim. Claim 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, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.
(b) Limitation on Allowance of Credits and Refunds.
(1) Filing of claim within prescribed period. No credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (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.
(2) Limit on amount of credit or refund.
(A) Limit where claim filed within 3-year period. If the claim was filed by the taxpayer during the 3-year period described in subsection (a), the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return. If the tax was required to be paid by means of a stamp, the amount of the credit or refund shall not exceed the portion of the tax paid within the 3 years immediately preceding the filing of the claim.
(B) Limit where claim not filed within 3-year period. If the claim was not filed within such 3-year period, the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 ...