Anthony

MEMORANDUM ***

George Anthony appeals the district court’s dismissal of his claim for a refund on his 1992 taxes. This case arises out of a prior tax court judgment, to which both Anthony and the Internal Revenue Service (“IRS”) stipulated, and in which a portion of Anthony’s income was erroneously double-counted. The IRS adjusted Anthony’s returns in later years to correct the error.

Anthony contends that the IRS action did not compensate him adequately for the error, and filed a refund suit. The district court dismissed the action on the basis that the prior tax court judgment deprived the district court of jurisdiction under 26 U.S.C. § 6512 (a). Thus, the salient question on appeal is whether Anthony satisfies the mitigation provisions of the statute, which would provide the district court with subject matter jurisdiction. See 26 U.S.C. §§ 1311-1314 .

In order to qualify for mitigation, a taxpayer must establish (1) there has been a final determination under § 1313; (2) the IRS has maintained an inconsistent position in another taxable year; and (3) the taxpayer meets one of the enumerated criteria in § 1312. Beaudry Motor Co. v. United States, 98 F.3d 1167, 1168 (9th…