SHIMMON

Three couples—Benjamin R. and Carmela L. Du, Edward L. and Anneliese Shimmon, and Paul A. and Patricia A. Mickelsen— filed complaints for income tax refunds in the superior court. They contended that the Franchise Tax Board (FTB) had improperly charged them interest on delinquent tax payments for a period of time during which interest should have been suspended pursuant to section 19116 of the Revenue and Taxation Code. The FTB demurred in one action, moved for judgment on the pleadings in the other two, and prevailed in all three. The court entered judgments of dismissal, and all six plaintiffs appealed.

We affirm as to the Dus and Shimmons because they expressly waived their right to seek a refund. We reverse as to the Mickelsens, however, because they did not waive their right to seek a refund and because the facts necessary to support the FTB’s other arguments are neither contained in the Mickelsens’ complaint nor judicially noticeable on the record before us.

BACKGROUND

When the Shimmons filed their original 1999 individual California income tax return in 2000, they reported taxable income of $1,550,340. On or about March 10, 2004, the Shimmons filed an amended…