ORLANDO v. USA

Filing 22

ORDER of Dismissal granting 14 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Nancy B. Firestone. (sf)

O R L A N D O v. USA

D o c . 22

In the United States Court of Federal Claims
N o . 09-702T (F ile d : August 26, 2010) ******************* ESTATE of MICHAEL ORLANDO, Plaintiff, v. T H E UNITED STATES, Defendant. ******************* * * * * * * * * * * * * *

M o t io n to Dismiss RCFC 12(b)(1); T im e lin e s s of Action Challenging a T a x Assessment Against an Alleged " R e s p o n s ib le Person" under 26 U.S.C. § 6672; 26 U.S.C. § 6532(a)(1) Statute o f limitations; No Equitable E x c e p tio n s to Filing Period; P r e r e q u i s it e s for Extension Not Met, 2 6 C.F.R. § 301.6532-1(b).

James O. Druker, Garden City, NY, for plaintiff. Paula Schwartz Frome, Garden City, NY, of counsel. Christopher S. Dove, U.S. Department of Justice, Washington, DC, with whom were John J. DiCicco, Acting Assistant Attorney General, and Steven I. Frahm, Chief, Court of Federal Claims Section for defendant. OPINION ON MOTION TO DISMISS FIRESTONE, Judge.
T h is case involves the April 5, 2005 Internal Revenue Service ("IRS") assessment o f the penalty provided by 26 U.S.C. § 6672 (1998) ("Section 6672")1 against "Michael

26 U.S.C. § 6672(a) provides in relevant part that "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax . . . [shall] be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over."

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Dockets.Justia.com

O rla n d o , deceased." The plaintiff in this case is the Estate of Michael Orlando ("the p lain tiff " or "Mr. Orlando's estate"). The complaint seeks recovery of the penalty im p o s e d on Michael Orlando as a responsible party because he served as the president of a c o m p a n y that failed to pay employment taxes. Pending before the court is the motion of th e defendant, the United States ("the defendant" or "the government"), to dismiss the c o m p la in t pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal C la im s for lack of subject matter jurisdiction. T h e government has moved to dismiss the complaint on the grounds that it is barred b y the two-year statute of limitations contained in subsection (a)(1) of 26 U.S.C. § 6532 (2 0 0 5 ) ("Section 6532") because the lawsuit was not filed within two years after the IRS d is a llo w e d plaintiff's claim for recovery of the penalty. 26 U.S.C. §6532(a)(1) (2005) ( " S e c tio n 6532(a)(1)") states: N o suit or proceeding under [26 U.S.C. § 7422(a) (2005) ("Section 7422(a)")] f o r the recovery of any internal revenue tax, penalty, or other sum, shall be b e g u n before the expiration of 6 months from the date of filing the claim re q u ire d under such section unless the Secretary renders a decision thereon w ith in that time, nor after the expiration of 2 years from the date of mailing by c e rtif ie d mail or registered mail by the Secretary to the taxpayer of a notice of th e disallowance of the part of the claim to which the suit or proceeding relates. S e c tio n 6532(a)(1) (emphasis added). Section 7422(a) provides, in turn, No suit or proceeding shall be maintained in any court for the recovery of any i n t e r n a l revenue tax alleged to have been erroneously or illegally assessed or c o lle c te d , or of any penalty claimed to have been collected without authority, o r of any sum alleged to have been excessive or in any manner wrongfully c o lle c te d , until a claim for refund or credit has been duly filed with the S e c re ta ry, according to the provisions of law in that regard, and the regulations 2

o f the Secretary established in pursuance thereof. S e c tio n 7422(a). For the reasons that follow, the government's motion is GRANTED. B A C K G R O U N D FACTS T h e following background facts are taken from the pleadings and are, for the p u rp o s e s of a motion to dismiss, taken as true. United Pac. Ins. Co. v. United States, 464 F .3 d 1325, 1327-28 (Fed. Cir. 2006) In 2001, Mr. Orlando served as the president of Ultimate Display Industries, Inc. (" th e company"). The company filed for Chapter 11 bankruptcy protection on June 4, 2 0 0 1 . The defendant filed a priority claim for the employment taxes that gave rise to the S e c tio n 6672 penalty in this case. Thereafter, the proceeding was converted to a liq u id a tio n proceeding under Chapter 7 of the Bankruptcy Code and control of the c o m p a n y was transferred to the Creditor's Committee. Mr. Orlando died on September 5, 2 0 0 2 . On September 12, 2003, the Creditor's Committee filed an objection to the proof of c la im filed by the defendant for those taxes. The plaintiff claims that the defendant failed to respond to that objection in a timely fashion, resulting in the defendant being barred fro m collecting its priority claim. (See Compl. ¶ 27.) On April 7, 2005, the defendant, pursuant to Section 6772, assessed a penalty of $ 3 7 6 ,0 7 4 .7 2 against "Michael Orlando, deceased" stemming from unpaid employment ta x e s for the second quarter of 2001 and the second, third, and fourth quarters of 2002. On

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J u n e 24, 2005, the defendant abated the penalties for the fourth quarter of 2002 on the b a sis that Mr. Orlando had passed away before the start of that quarter. The remaining p e n a lty was $255,497.49. On March 15, 2006, the plaintiff paid the IRS a total of $ 1 5 0 .0 0 , which represented $50.00 for each of the three quarters at issue. On the same d a y, the plaintiff filed a claim with the IRS for a refund of this amount. The claim was d is a llo w e d on April 12, 2006 by a letter sent certified mail. The letter stated: If you wish to bring suit or proceedings for recovery of any tax, penalties, and o th e r monies that were paid, and for which this notice of disallowance is issued, yo u may do so by filing suit with the United States District Court having ju ris d ic tio n , or the United States Court of Federal Claims. The law permits you to do so within two years of the mailing date of this letter. (E x . B to Compl. (Letter from W. Valenti, Technical Services Group Manager, Small B u s in e ss /S e lf -E m p lo ye d Division, IRS, to Barry Honigman 2 (Apr. 12, 2006) ("April 2006 letter")) (emphasis added).) On April 19, 2006, the plaintiff filed a letter of appeal with the defendant. The p la in tif f filed supplemental letters on May 18, 2007 and June 28, 2007. On October 25, 2 0 0 7 , the appeal was denied in a letter sent certified mail. This letter stated: If you wish to bring suit or proceedings for the recovery of any tax, penalties o r other moneys for which this disallowance notice is issued, you may do so by f ilin g such a suit with the United States District Court having jurisdiction, or w ith the United States Court of Federal Claims. The law permits you to do this w ith in 2 years from the mailing date of this letter. (Ex. E to Compl. (Letter from Katherine Heyden, Appeals Team Manager, IRS Appeals

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Mr. Honigman, an attorney, represented the plaintiff before the IRS.

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O ff ice, to Donna Orlando 3 (Oct. 25, 2007) ("October 2007 letter") (emphasis added)).) T h e plaintiff filed suit in this court on October 21, 2009, which was within two years of th e mailing date of the October 2007 letter but more than two years after the mailing date o f the April 2006 letter.4 T H E PARTIES' ARGUMENTS T h e focus of the dispute at this stage is whether the plaintiff's claim is barred by the tw o -ye a r statute of limitations contained in Section 6532(a)(1). The government claims th a t this court does not have jurisdiction because the two-year statute of limitations began to run on the mailing date of the first letter denying the claim on April 12, 2006. Because th e plaintiff did not file the instant suit until October 2009, argues the government, the suit w a s filed out-of-time and must be dismissed. In response, the plaintiff asserts that the O c to b e r 2007 letter denying the plaintiff's appeal to the IRS (which was sent within two ye a rs of the April 2006 letter) extended the time for filing suit to October 2009. The p la in tif f asserts that the second letter serves as an "agreement" by the IRS to extend the s ta tu te of limitations. Such agreements are allowed under 26 U.S.C. § 6532(a)(2) (2005) (" S e c tio n 6532(a)(2)"), which states, "The 2-year period . . . shall be extended for such

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Donna Orlando is Mr. Orlando's widow and the executrix of her late husband's estate.

The court notes that the pleadings do not indicate that the IRS has assessed any liability for the Section 6672 penalty against the estate of Michael Orlando. The plaintiff asserts that under controlling New York law, "Michael Orlando, deceased," against whom the assessment was made, is distinct from the estate of Michael Orlando and any action must be maintained against the estate. (See Pl.'s Opp'n to Mot. Dismiss ("Pl.'s Opp'n") 7-9.) The plaintiff argues that the statute of limitations for the IRS to seek recovery from the estate has passed. However, because the court finds that it does not have jurisdiction over the plaintiff's complaint in the first instance, it does not reach these issues.

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p e rio d as may be agreed upon in writing between the taxpayer and the Secretary." The government responds that the October 2007 letter met neither the statutory nor th e regulatory requirements for an agreement to extend the time for filing suit. Therefore, a rg u e s the government, the time for filing suit expired in April 2008, and the case must be d is m is s e d . The government further argues that regardless of any confusion that the second le tte r caused, there is no equitable exception to the statute of limitations. S T A N D A R D OF REVIEW T h e plaintiff bears the burden of establishing subject matter jurisdiction, Alder T e rra c e, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. G e n . Motors, 298 U.S. 178, 189 (1936)), and must do so by a preponderance of the ev iden ce , Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). W h e n considering a motion to dismiss for lack of subject matter jurisdiction, the court will a c ce p t the complaint's undisputed allegations as true and construe the complaint in a m a n n e r favorable to the plaintiff. United Pac. Ins. Co., 464 F.3d at 1327-28. Subject m a tte r jurisdiction may not be waived or forfeited; when a court concludes that it lacks ju ris d ic tio n , the complaint must be dismissed. See John R. Sand & Gravel Co. v. United S tates, 457 F.3d 1345, 1354 (Fed. Cir. 2006), aff'd, 552 U.S. 130 (2008). D IS C U S S IO N I. T h e April 2006 Letter Was the Notice of Disallowance and the October 2008 L e tte r Did Not Meet the Requirements of an Agreement under Section 6 5 3 2 (a )(2 ) or Its Implementing Regulation so as to Extend the 2-year Filing D e a d lin e . 6

B e f o re discussing the parties' arguments, the court deems it useful to discuss the o p e ra tio n of the statute of limitations contained in Section 6532(a)(1) and its application to the instant case. As explained above, Section 6532(a)(1) gives the taxpayer two years fro m the mailing date of a notice of disallowance to file suit. See Section 6532(a)(1). In th is case, the April 2006 letter was the notice of disallowance of the plaintiff's claim. This le tte r correctly stated, "The law permits you to [file suit] within two years of the mailing d a te of this letter." (April 2006 letter.) The October 2007 letter, which notified the p lain tiff that its appeal had been denied, contained the statement, "The law permits you to [ f ile suit] within 2 years from the mailing date of this letter." (October 2007 letter ( e m p h a s is added).) This October 2007 representation by the IRS Appeals Office was, h o w e v e r, legally incorrect. The two-year period runs from the date the notice of d is a llo w a n c e is sent and, by statute, it is not tolled by any administrative appeals. See 26 U .S .C . § 6532(a)(4) (2005) ("Section 6532(a)(4)") ("Any consideration, reconsideration, o r action by the Secretary with respect to such claim following the mailing of a notice by c e rtif ie d mail or registered mail of disallowance shall not operate to extend the period w ith in which suit may be begun."). The only exception from the strict filing deadline is f o u n d in Section 6532(a)(2), which allows for the IRS and the taxpayer to enter into a w ritte n agreement to extend the statute of limitations. In its reply brief, the plaintiff argues that the October 2007 letter should be c o n stru e d as a written agreement to extend the statute of limitations under Section

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6 5 3 2 (a )(2 ) and, thus, the complaint was timely filed.5 (See Pl.'s Opp'n 7.) In response, th e government argues that this interpretation does not comport with the language of either th e statute or its implementing regulation, 26 C.F.R. § 301.6532-1 (1967). The court agrees with the government. As the government notes, 26 C.F.R. § 3 0 1 .6 5 3 2 -1 establishes requirements for a valid written agreement, which were not met by th e October 2007 letter. 26 C.F.R. § 301.6532-1(b) states: T h e 2-year period . . . may be extended if an agreement to extend the running o f the period of limitations is executed. The agreement must be signed by the ta x p a ye r or by an attorney, agent, trustee, or other fiduciary on behalf of the tax p a ye r. If the agreement is signed by a person other than the taxpayer, it shall b e accompanied by an authenticated copy of the power of attorney or other lega l evidence of the authority of such person to act on behalf of the taxpayer. If the taxpayer is a corporation, the agreement should be signed with the c o rp o ra t e name followed by the signature of a duly authorized officer of the c o rp o ra tio n . The agreement will not be effective until signed by a district d ire c to r, a director of an internal revenue service center, or an assistant regional c o m m i s s io n e r . 2 6 C.F.R. § 301.6532-1(b) (emphasis added). In the October 2007 letter, the IRS stated, "The law permits you to [file suit] within 2 years from the mailing date of this letter." (October 2007 letter (emphasis added).) On its face, this sentence is not an agreement or even an offer to extend the statute of lim ita tio n s by two years. Rather, it is only an explanation, albeit an incorrect one, of what th e law permits. Even if the October 2007 letter could be construed to be an "extension" of the

Section 6532(a)(2) provides: "The 2-year period . . . shall be extended for such period as may be agreed upon in writing between the taxpayer and the Secretary." Section 6532(a)(2).

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lim ita tio n s period, it would still not meet the requirements for an "agreement" under the a p p lic a b le regulation. The October 2007 letter was not signed by "the taxpayer or by an a tto rn e y, agent, trustee, or other fiduciary on behalf of the taxpayer" as required by 26 C .F .R . § 301.6531-1(b). Nor was it signed by "a district director, a director of an internal re v e n u e service center, or an assistant regional commissioner." See 26 C.F.R. § 301.65311 (b ). Rather, the letter was signed by Katherine Heyden, the Appeals Team Manager of th e Hempstead, New York IRS Appeals Office. For all of these reasons, the October 2007 letter does not constitute a "written a g re e m e n t" to extend the time for filing suit as provided for in Section 6532(a)(2). Therefore, the October 2007 letter did not extend the time for filing suit beyond two years o f the mailing date of the April 2006 letter. II. T h is Court Is Not Permitted to Grant an Equitable Exception to the Two-Year S tatu te of Limitations Contained in Section 6532(a)(1). A s this court concludes today that there is no statutory or regulatory exception that w o u ld permit the plaintiff to file suit more than two years after the mailing date of the A p ril 2006 letter, only an equitable exception, if available, would permit this court to hear th e plaintiff's complaint. Unfortunately for the plaintiff, no such equitable exception is p e rm itte d by law. In United States v. Brockamp, 519 U.S. 347, 348 (1997), the Supreme Court c o n s id e re d whether courts may toll, "for nonstatutory equitable reasons, the statutory time . . . limitations for filing tax refund claims set forth in [26 U.S.C.] § 6511 [(1994) 9

(" S e c tio n 6511")]" 6 and found that they could not. While the Court noted that " [ o ]rd in a rily limitations statutes use fairly simple language, which one can often plausibly re a d as containing an implied `equitable tolling' exception," it noted that "[Section] 6511 u s e s language that is not simple" and that "[i]t sets forth its limitations in a highly detailed tec h n ica l matter, that, linguistically speaking, cannot easily be read as containing implicit e x c ep tio n s ." Brockamp, 519 U.S. at 350. The Court also noted that "[Section] 6511 reitera tes its limitations several times in several different ways." Id. at 351. The Court c o n c lu d e d that "Section 6511's detail, its technical language, the iteration of the lim ita tio n s in both procedural and substantive forms, and the explicit listing of exceptions, ta k e n together, indicate to us that Congress did not intend courts to read other u n m e n tio n e d , open-ended, `equitable' exceptions into the statute that it wrote." Id. at 352; see also John R. Sand & Gravel, 552 U.S. at 133-34 (citing Brockamp and describing the s ta tu te of limitations contained in Section 6511 as "jurisdictional" and "limiting the scope o f a governmental waiver of sovereign immunity" (internal quotation marks omitted)). T h e Federal Circuit, relying on the Supreme Court's holding in Brockamp, d e ter m in e d that, like Section 6511, Section 6532 does not contain an implicit equitable ex ce p tio n . In RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-62 (Fed. Cir. 1 9 9 8 ), the Federal Circuit stated:

Section 6511 sets forth the statute of limitations for filing a refund claim with the IRS. Section 6532, in contrast, sets forth the statute of limitations for filing suit where, inter alia, a claim brought under Section 6511 has been denied.

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T h e statute of limitations in this case, [Section] 6532, is part of the same s ta tu to ry scheme as the statute of limitations in Brockamp. Section 6532(a) s e ts forth its limitations in a detailed, technical manner, and reiterates the two yea r limitations in subsections (1), (2) and (3). See [Section] 6532(a). It p re sc rib e s a particular process for extending the two year period in subsection (2), and this strongly implies that there are no other exceptions to the statutory p e rio d . See [Section] 6532(a)(2). Moreover, subsection (4) states that any f u rth e r action taken by the Secretary after a notice of disallowance is mailed to th e taxpayer does not operate to extend the statutory period. See [Section] 6 5 3 2 (a )(4 ). This language explicitly prohibits equitable considerations based o n the actions of the IRS after a notice is mailed. . . . Based on this analysis, th e re is less reason to believe that [S]ection 6532 has an implied equitable e x c e p tio n than [S]ection 6511, which was examined by the Supreme Court in B ro c k a m p . Id . at 1462 (emphasis added);7 see also TRW, Inc. v. Andrews, 534 U.S. 19, 28 (2001) (" `W h e re Congress explicitly enumerates certain exceptions to a general prohibition, ad d ition al exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.'" (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980)).8

The court notes that the instant case, like RHI Holdings, involves the doctrine of equitable estoppel rather than the doctrine of equitable tolling, which was the focus of the Supreme Court in Brockamp. See RHI Holdings, 142 F.3d at 1461. In their filings, the parties devote significant space to a debate over the applicability of the Federal Circuit's holding in Marcinkowsky v. United States ("Marcinkowsky II"), 206 F.3d 1419 (Fed. Cir. 2000) to the facts of the instant case. See Marcinkowsky II, 206 F.3d 1419, aff'g Marcinkowsky v. United States, 44 Fed. Cl. 610, 612 (1999) ("Marcinkowsky I") (collectively, "the Marcinkowsky cases"). In the Marcinkowsky cases, the taxpayer had received a $100,000 settlement for wrongful termination from which federal income tax and FICA (Social Security and Medicare) taxes were withheld. He filed two separate refund requests, one in July 1994 for a refund of the income tax and one in June 1995 for a refund of the FICA taxes. These claims were denied by separate letters, the first sent in September 1994 and the second sent in August 1995. Both letters stated, "`The law permits you to [file suit] within two years from the mailing date of this letter. If you decide to appeal our decision first, the two year period still begins from the mailing date of this letter.'" Marcinkowsky II, 206 F.3d at 1420 (quoting the letters). Mr. Marcinkowsky then requested administrative review within the IRS, and various exchanges took place between Mr. Marcinkowsky and the IRS until April 24, 1998, when the IRS informed Mr. Marcinkowsky by letter that his claim was denied. The letter concluded: "If you wish to appeal our decision, you can file suit in the Federal District Court or the Federal Court of Claims [sic]. By
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T h u s, even though the IRS stated in the October 2007 letter that "[t]he law permits [ th e taxpayer to file suit] within 2 years from the mailing date of this letter," that statement w a s legally incorrect. The plain language of Section 6532(a)(1) states that a refund claim m a y not be brought "after the expiration of 2 years from the date of mailing by certified m a il or registered mail by the Secretary to the taxpayer of a notice of the disallowance of th e part of the claim to which the suit or proceeding relates." Section 6532(a)(1). In such c irc u m s ta n c es , the April 2006 letter, which disallowed the claim, established the operative d a te . Because the plaintiff filed the instant suit was filed more than two years after that d a te, the court has no choice but to dismiss the complaint.9

providing you with this information, we are concluding our research in this matter and will consider your case closed." Id. at 1421. The plaintiff did not allege, however, that this letter made any statement regarding the two-year statute of limitations. Rather, the plaintiff asserted that the IRS's actions during the administrative appeal extended the statute of limitations. The trial court held, and the Federal Circuit affirmed, that the April 24, 1998 letter did not toll the statute of limitations. Notably, however, more than two years had passed after the notices of disallowance were passed and the 1998 letter was sent. See Marcinkowsky II, 206 F.3d at 1422 ("We take note that the two-year time for filing a refund suit based on the 1994 and 1995 denials had passed before the IRS wrote to Mr. Marcinkowsky in 1998."). The government argues that the Marcinkowsky cases concerned the same factual scenario as presented by the instant case and thus makes it clear that regardless of whether a second letter from the IRS incorrectly states that the taxpayer has two years from the mailing date of the second letter to file suit (as opposed to two years from the mailing date of the first letter), the court may not grant an equitable exception to the statute of limitations contained in Section 6532(a)(1). In response, the plaintiff argues that the facts of the Marcinkowsky cases were significantly different than those of the instant case and therefore, the Federal Circuit's holding in Marcinkowsky II is not controlling. The court agrees with the plaintiff that there are differences between the facts of Marcinkowsky II and the instant case. However, the differences are not of consequence given the decision in RHI Holdings, in which the Federal Circuit expressly held that there is no equitable exception to the strict two-year statute of limitations found in Section 6532(a)(1). See RHI Holdings, 142 F.3d at 1461-62. That decision, as discussed above, is controlling. The plaintiff also points to two cases discussed in Marcinkowsky I, L & H Co., Inc. v. United States, 761 F. Supp. 572 (N.D. Ill. 1991), aff'd, 963 F.2d 949 (7th Cir. 1992), and Se. Bank of Orlando v. United States, 230 Ct. Cl. 277 (1982), in which the courts dealt with similar facts but found that equitable principles suggested that the statute of limitations should run from the date of the latter letter denying reconsideration. Both of these cases were decided before RHI Holdings, in which the Federal Circuit
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T h e court understands that the October 2007 letter's legally incorrect statement may h a v e confused the plaintiff. However, as the Supreme Court noted in Brockamp, The IRS processes more than 200 million tax returns each year. It issues more th a n 90 million refunds. To read an "equitable tolling" exception into [Section] 6 5 1 1 could create serious administrative problems by forcing the IRS to re sp o n d to, and perhaps litigate, large numbers of late claims, accompanied by re q u e sts for "equitable tolling" which, upon close inspection, might turn out to la c k sufficient equitable justification. The nature and potential magnitude of th e administrative problem suggest that Congress decided to pay the price of o c c a sio n a l unfairness in individual cases (penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement s ys t e m . B ro c k a m p , 519 U.S. at 352-53 (citations omitted); see also id. at 352 ("Tax law . . . is not n o rm ally characterized by case-specific exceptions reflecting individualized equities."); W a lth e r v. United States, 54 Fed. Cl. 74, 76 (2002) ("Statutes of limitations for tax refunds `a re established to cut off rights, justifiable or not, that might otherwise be asserted and th e y must be strictly adhered to by the judiciary. Remedies for resulting inequities are to b e provided by Congress, not the courts.'" (quoting Kavanagh v. Noble, 332 U.S. 535, 539 (1 9 4 7 ))); see also Thomasson, 1997 WL 220321 at *4 ("The court does not condone the b e h a v io r of the IRS . . . . Misleading taxpayers or their representatives is irresponsible and b e l o w the standard of conduct the public has a right to expect of its government. Congress h a s chosen, however, to apply a `bright-line' rule in this statute for the sake of a d m in is tra tiv e efficiency. It is not the province of this court to gainsay the balance struck

explicitly stated that there is no equitable exception to the statute of limitations in Section 6532(a)(1). RHI Holdings, 142 F.3d at 1461-62; see also Marcinkowsky I, 44 Fed. Cl. at 613 (questioning whether Se. Bank of Orlando "remain[s] good law" after RHI Holdings).

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b y Congress between equity and efficiency.").1 0 A s this court is bound by the Federal Circuit's decision in RHI Holdings, it cannot p e rm it an equitable exception from the two-year statute of limitations contained in Section 6 5 3 2 (a )(1 ). Therefore, because the statute of limitations ran before the plaintiff filed its c o m p la in t, the court has no option but to dismiss the complant as untimely. C O N C L U SIO N F o r all the foregoing reasons, the defendant's motion to dismiss is GRANTED and th e plaintiff's complaint is DISMISSED without prejudice. The clerk is directed to enter ju d g m e n t accordingly. Each party is to bear its own costs. I T IS SO ORDERED.

s /N a n c y B. Firestone NANCY B. FIRESTONE Judge

As the court dismisses the plaintiff's complaint for lack of jurisdiction, it does not reach the merits of the plaintiff's claim. Thus, the court's opinion does not preclude the plaintiff from raising the same arguments against the assessment as it did in its complaint here should the IRS attempt to collect the remainder of the assessment.

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