Susan Libitzky v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-15614

SUSAN M. LIBITZKY;

MOSES LIBITZKY,

D.C. No. 3:18-cv- 00792-JD Plaintiffs-Appellants,

v.

OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Argued and Submitted May 13, 2024 San Francisco, California

Filed August 5, 2024

Before: Kenneth K. Lee and Daniel A. Bress, Circuit Judges, and John R. Tunheim, * District Judge.

Opinion by Judge Lee

* The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. SUMMARY **

Tax

The panel affirmed on different grounds the district court’s dismissal of taxpayers’ action seeking a refund in overpayment of taxes. Taxpayers filed a late 2011 tax return and a formal claim for a refund in overpayment of taxes in 2016. The panel held that, in compliance with 26 U.S.C. § 6511(a), the refund claim was timely because it was made within three years of filing the return. However, the refund amount is based on the look-back period under § 6511(b)(2), which…