Marian Brockamp, Administrator and Sole Residuary Beneficiary of the Estate of Stanley B. McGill Deceased v. United States

Opinion by Judge WIGGINS; Dissent by Judge FERNANDEZ.

Marian Broekamp, the administrator and sole beneficiary of the estate of her father, Stanley B. McGill, brought an action for a refund of his April 1984 income tax overpayment. The district court granted summary judgment in favor of the United States, holding that the suit was precluded by the statute of limitations. We reverse and remand for further proceedings on Mr. McGill’s mental incompetence.

BACKGROUND

In April 1984, Mr. McGill, who was 93 years old at the time, mailed a cheek to the Internal Revenue Service (“IRS”) for $7,000, along with an application for an automatic extension of time to file his 1983 income tax return. He made no indication of his reason for sending the $7,000. Despite his extension request, Mr. McGill never filed an income tax return for 1983. More than two years later, on July 15, 1986, the IRS transferred the $7,000 from Mr. McGill’s account into an “Excess Collection Account.”

Mr. McGill died intestate on November 7, 1988 at the age of 98. During the administration of his estate, Mrs. Broekamp discovered the $7,000 payment and requested a refund. In a letter to the IRS, Mrs. Brock-amp…

dissenting:

Under 26 U.S.C. § 6511 (a), Brockamp’s claim for a refund of her father’s 1983 taxes was untimely. See Miller v. United States, 38 F.3d 473, 475 (9th Cir.1994). Brockamp argues that even so the doctrine of equitable tolling should operate to relieve her from the time limitations of § 6511.

The Supreme Court has held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 , 111 S.Ct. 453, 457 , 112 L.Ed.2d 435 (1990) (Title VII action). At the same time, the Court has recognized that equitable tolling is traditionally extended only “sparingly,” in two limited circumstances not at issue here. 2 Id. at 96 , 111 S.Ct. at 457-58 ; see also Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir.) (noting that equitable tolling is available in “extreme cases” and has been, applied “sparingly”), cer t. denied, — U.S.-, 113 S.Ct. 196 , 121 L.Ed.2d 139 (1992).

Sparing or not, the principles of equitable tolling cannot be applied to § 6511. In Unit *264 ed States v. Dalm, 494 U.S. 596 , 110 S.Ct. 1361 , 108…

67 F.3d 260 76 A.F.T.R.2d 95 -6735, 64 USLW 2221 , 95-2 USTC P 50,551 , 95-2 USTC P 60,213 , 95 Cal. Daily Op. Serv. 7805 , 95 Daily Journal D.A.R. 13 ,427 Marian BROCKAMP, administrator and sole residuary beneficiary of the Estate of Stanley B. McGill, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 94-56424. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 5, 1995. Decided Oct. 5, 1995. Robert F. Klueger, Boldra & Klueger, Encino, California, for plaintiff-appellant. Bridget M. Rowan, Tax Division, United States Department of Justice, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges. Opinion by Judge WIGGINS; Dissent by Judge FERNANDEZ. WIGGINS, Circuit Judge: 1 Marian Brockamp, the administrator and sole beneficiary of the estate of her father, Stanley B. McGill, brought an action for a refund of his April 1984 income tax overpayment. The district court granted summary judgment in favor of the United States, holding that the suit was precluded by the statute of limitations. We…