[00:00:00] Speaker 03:
Good morning, Your Honor.

[00:00:01] Speaker 02:
I'm Joseph Broyles for the appellants.

[00:00:04] Speaker 02:
Am I watching this clock here for my time?

[00:00:06] Speaker 02:
Yes.

[00:00:06] Speaker 02:
You're going to have, you reserved three minutes of your total 15 for rebuttal, correct?

[00:00:12] Speaker 02:
Yes.

[00:00:13] Speaker 02:
Mr. Broyles, correct?

[00:00:14] Speaker 02:
Yes, Your Honor.

[00:00:15] Speaker 02:
Okay.

[00:00:15] Speaker 02:
You may proceed.

[00:00:16] Speaker 03:
Good morning.

[00:00:16] Speaker 03:
May it please the court.

[00:00:18] Speaker 03:
I'm Joseph Broyles on behalf of the appellants.

[00:00:20] Speaker 03:
This case involves a tax refund.

[00:00:23] Speaker 03:
There's no underlying dispute about the existence of the refund.

[00:00:27] Speaker 03:
This taxpayer

[00:00:28] Speaker 03:
after he died, the tax return was filed more than three years late because he died.

[00:00:40] Speaker 03:
There was an overpayment on the tax return and a claim for refund was subsequently filed requesting that refund.

[00:00:50] Speaker 03:
Attached to the claim for refund was a statement by a doctor as required by a revenue procedure

[00:00:57] Speaker 03:
99-21.

[00:00:58] Speaker 03:
The statement by the doctor stated that the decedent was financially disabled at the time of the claim for refund.

[00:01:10] Speaker 03:
And there was also a statement signed by the executor of the estate of the decedent.

[00:01:16] Speaker 00:
Mr. Croyles, we're very familiar with the facts.

[00:01:20] Speaker 00:
So I have a question for you.

[00:01:21] Speaker 00:
One of the arguments you make on appeal involves whether there was error

[00:01:27] Speaker 00:
and the credibility findings made by the court below.

[00:01:30] Speaker 00:
Are you aware that our review of credibility findings rates virtually unreviewable?

[00:01:37] Speaker 03:
I am, Your Honor, and I think the error was in evaluating the credibility of the witness, of the

[00:01:46] Speaker 03:
in the first place.

[00:01:48] Speaker 00:
Your argument is more that we shouldn't look behind it all.

[00:01:51] Speaker 00:
So long as you provide an affidavit, the IRS should just accept it at face value and that's the end.

[00:01:56] Speaker 03:
Exactly.

[00:01:57] Speaker 03:
Unless there's some indication of fraud or some other malfeasance, yes.

[00:02:00] Speaker 03:
I think that's the whole point of the revenue procedure.

[00:02:03] Speaker 00:
Indication of fraud in the face of the document itself?

[00:02:06] Speaker 00:
They can't look behind to find fraud?

[00:02:08] Speaker 02:
I think that's the purpose of the revenue procedure.

[00:02:11] Speaker 02:
What if the document suggests fraud or raises a question?

[00:02:16] Speaker 02:
I'm sorry, Your Honor.

[00:02:16] Speaker 02:
What if the document raises a question of misrepresentation or, let's say, fraud?

[00:02:23] Speaker 02:
Well, then, yes.

[00:02:24] Speaker 02:
At that point, the IRS could go behind the document and seek evidence?

[00:02:29] Speaker 03:
Yes, and I think that's the sort of issue that it's not... That wouldn't be a medical issue.

[00:02:36] Speaker 03:
I think the purpose of the revproc is that IRS accountants, lawyers, judges are not... So you agree that if

[00:02:46] Speaker 02:
a document, in this instance it's the letter from the doctor, raises the suspicion of the IRS and they're entitled then, at that point, to go behind the document and seek evidence to judge its credibility.

[00:02:59] Speaker 03:
Yes, Your Honor, I would concede that point, but I think it's the purpose of the Rev Proc to have that statement so that IRS auditors and accountants... Then I thought your argument was that the IRS can never go behind the document.

[00:03:16] Speaker 02:
Well, you've conceded something that I think hurts you.

[00:03:20] Speaker 02:
Well, you suggested that if there was fraud on the face of the dollar... If it raises a suspicion of fraud or misrepresentation.

[00:03:33] Speaker 03:
Well, but I don't think that it should allow the trier of fact, whether that's an IRS auditor or a judge, to analyze whether or not

[00:03:44] Speaker 03:
the statement itself is sufficient.

[00:03:48] Speaker 03:
And what I mean is it shouldn't allow the trial or fact, whether that be an IRS auditor or a judge, to go into the issues of the decedent's health.

[00:04:05] Speaker 03:
For example, there was a lot of testimony in this case about how sick was he?

[00:04:12] Speaker 03:
Was he able to drive?

[00:04:13] Speaker 03:
Was he able to live alone?

[00:04:14] Speaker 03:
And I think those are all the issues that the RevProc was designed to prevent us from getting into, because we're not doctors.

[00:04:24] Speaker 02:
Again, I think it is the point of the revenue procedure that... But the agency does have... It can make credibility determinations on the documents that are being submitted, the tax documents and the supporting documents that are being submitted.

[00:04:39] Speaker 02:
It's not a medical issue, it's a credibility question, is it not?

[00:04:44] Speaker 03:
No, I think the purpose of the Revproc is to avoid that sort of analysis.

[00:04:50] Speaker 03:
Again, because it's not going to be a doctor who's making that determination.

[00:04:55] Speaker 03:
It's going to be an IRS agent or an accountant or a lawyer.

[00:04:58] Speaker 03:
And because we accountants, lawyers, are not medically trained, we're not in a position to make those determinations.

[00:05:06] Speaker 03:
That's the point of the Revproc.

[00:05:08] Speaker 04:
Do you understand that judges make determinations about credibility of medical professionals in thousands of cases every day in this country, including at the Court of Federal Claims, where they have jurisdiction over vaccine act cases, which are much more highly complex than the facts at issue here?

[00:05:25] Speaker 03:
I do, Your Honor.

[00:05:26] Speaker 03:
But again, I think it is the purpose of the rev proc to avoid that.

[00:05:30] Speaker 03:
Let me ask you this.

[00:05:31] Speaker 04:
You keep talking about the IRS procedure.

[00:05:34] Speaker 04:
Is there anything in the statute of limitations that suggests

[00:05:37] Speaker 04:
The statute of limitations, the statutory language, is told merely upon the submission of evidence, not proof of disability.

[00:05:47] Speaker 03:
No, Your Honor.

[00:05:48] Speaker 03:
The statute leaves it.

[00:05:53] Speaker 03:
There's a provision in the statute that says that the IRS will create rules to determine what is disabled.

[00:06:04] Speaker 03:
And the guy has created that rule in revenue procedure 99-21.

[00:06:09] Speaker 04:
And our position is that compliance with the revproc should... Where in that procedure does it say it's told upon submission rather than proof of disability?

[00:06:20] Speaker 04:
Well, it is the purpose of the revproc... No, not the purpose.

[00:06:24] Speaker 04:
I think we can disagree about purpose.

[00:06:27] Speaker 04:
Where a specific language that says the statute of limitations for tax refund claims

[00:06:32] Speaker 04:
is told upon submission of evidence of disability rather than proof of disability.

[00:06:39] Speaker 03:
It's not stated.

[00:06:41] Speaker 04:
Well, don't you lose them because this is in the court of federal claims where the statute of limitations are jurisdictional and a waiver of sovereign immunity.

[00:06:49] Speaker 04:
So it has to be expressed.

[00:06:56] Speaker 03:
The statute invites the IRS to write the rules.

[00:06:58] Speaker 03:
The IRS wrote the rule in the revenue procedure.

[00:07:01] Speaker 03:
And the revenue procedure has, I think, six elements that the taxpayer must comply with.

[00:07:07] Speaker 03:
And in this case, we did.

[00:07:08] Speaker 03:
And so I think that that should be the end of the analysis.

[00:07:12] Speaker 00:
Doesn't the statute, though, expressly refer to proof of the existence of the impairment as opposed to submission of evidence of the impairment?

[00:07:21] Speaker 03:
I don't know that the statute uses the word proof.

[00:07:23] Speaker 03:
Exactly.

[00:07:24] Speaker 04:
I'm looking at it.

[00:07:26] Speaker 03:
But the IRS wrote the revproc in response to the invitation in the statute.

[00:07:33] Speaker 03:
The statute invites the IRS to write rules.

[00:07:35] Speaker 03:
And the IRS wrote the rules in the revproc.

[00:07:38] Speaker 03:
And there are six elements, and the taxpayer complied with all of them.

[00:07:42] Speaker 03:
And I think that should be the end of the analysis.

[00:07:46] Speaker 03:
There are plenty of cases where one of the elements wasn't complied with.

[00:07:51] Speaker 03:
Most often, the doctor's certification.

[00:07:54] Speaker 03:
And in those cases, the courts have held that

[00:07:56] Speaker 03:
Failure to comply with the RevProc means that the claim for reform was untimely.

[00:08:02] Speaker 03:
I'm seeking a rule, a corollary rule, that compliance with the RevProc establishes, affirmatively establishes disability.

[00:08:14] Speaker 02:
That's the rule I'm finding.

[00:08:16] Speaker 02:
I thought that that was your case, that all you had to do was submit the affidavit and it was case over.

[00:08:26] Speaker 02:
But you suggested, in answering to my questions, or rather you said that if the document raises suspicion of the IRS, that they can ask you for proof.

[00:08:39] Speaker 03:
Well, Your Honor, I think I was asked a hypothetical.

[00:08:42] Speaker 03:
What if there's fraud on the face of the affidavit?

[00:08:46] Speaker 03:
I guess, in the case if there's fraud, then the affidavit

[00:08:53] Speaker 04:
Well, how is the IRS going to determine if there's fraud or not unless they look at other facts?

[00:09:00] Speaker 04:
I mean, no doctor is going to submit an affidavit that said, I am untruthfully certifying that this person was disabled.

[00:09:07] Speaker 03:
And maybe that's why I'm struggling with the answer.

[00:09:11] Speaker 03:
I can't imagine a situation where I can't imagine how there would be fraud on the face of an affidavit by a doctor.

[00:09:18] Speaker 04:
So basically, you're saying the evidence submitted by the

[00:09:22] Speaker 04:
the taxpayer is unreviewable.

[00:09:25] Speaker 04:
That is the purpose of the ref rock.

[00:09:27] Speaker 04:
And you glean that purpose from your own speculation about what it meant, because it's not in the plain language of the regulation.

[00:09:35] Speaker 04:
I do.

[00:09:37] Speaker 04:
Do you think that IRS likely intended a policy that would not allow it to further examine whether somebody was actually disabled?

[00:09:48] Speaker 04:
It seems unlikely.

[00:09:49] Speaker 03:
I think the IRS had in mind that, you know,

[00:09:52] Speaker 03:
accountants and tax lawyers aren't qualified to determine how sick someone is, whether their condition rises to the level of... Why do you keep going back to that?

[00:10:04] Speaker 04:
I mean, that's not who's determining it.

[00:10:06] Speaker 04:
They're getting evidence from medical professionals, they're submitting it to a judge, and a judge is deciding based upon its review of that medical testimony.

[00:10:15] Speaker 03:
I guess the rule that I'm asking this court to hold is that compliance with the rev prod

[00:10:21] Speaker 03:
as a matter of law.

[00:10:22] Speaker 04:
We know what you're asking for, but you haven't given us any specific language in either the statute or the procedure that supports that rule.

[00:10:29] Speaker 04:
And it seems to fly at odds with policy that IRS would make.

[00:10:35] Speaker 03:
No, Your Honor.

[00:10:37] Speaker 03:
There's a statement of purpose in the revenue procedure.

[00:10:40] Speaker 03:
And it is the purpose of the revenue procedure to establish a procedure and a rule for determining when someone is medically disabled.

[00:10:50] Speaker 03:
And I think once the taxpayer has complied with the revenue procedure, as a matter of law, they should, that should be it, as you said, that they should have then established medical disability.

[00:11:09] Speaker 03:
Any other questions, Johnners?

[00:11:11] Speaker 03:
No.

[00:11:12] Speaker 03:
I'll hold my time.

[00:11:13] Speaker 03:
Thank you.

[00:11:19] Speaker 02:
Council Briggs.

[00:11:21] Speaker 02:
Is that correct?

[00:11:22] Speaker 01:
Yes.

[00:11:22] Speaker 01:
Good morning, Your Honors.

[00:11:23] Speaker 01:
I'm Melissa Briggs.

[00:11:24] Speaker 01:
I represent the United States in this appeal.

[00:11:27] Speaker 01:
With me at council table is Mr. Carl Wasserman, who was the attorney who tried the case.

[00:11:33] Speaker 01:
As you noted, the estate argued in its brief that submission of documents that complied with the revenue procedure created irreparable proof of financial disability and irrevocably told the statutory limits

[00:11:48] Speaker 02:
But there's something about the letter, the document that was submitted by the doctor or that they submitted that raised a suspicion of the IRS.

[00:11:57] Speaker 02:
I mean, why did you doubt that?

[00:11:59] Speaker 01:
There's information in the record that provides that fraud on its face, evidence that you were alluding to in your earlier questions.

[00:12:13] Speaker 01:
So the revenue procedure requires two things to request a suspension of the tolling period.

[00:12:17] Speaker 01:
One is a letter from a doctor establishing certain elements.

[00:12:21] Speaker 01:
And the second is a statement that no one can act on a taxpayer's behalf during those tax years at questions like there's a power of attorney or a guardianship or something in effect.

[00:12:31] Speaker 01:
Here, the IRS record showed, and you can look at them in the joint appendix, the 4340s, which are evidence of that, at JAA 551.

[00:12:39] Speaker 01:
And the estate stipulated a trial

[00:12:41] Speaker 01:
There were payments made by Mr. Rubenstein throughout the 2001 tax years, and in fact, until 2004.

[00:12:50] Speaker 01:
He requested an extension to file his 2002 tax return until August of 2002.

[00:12:58] Speaker 01:
Either Mr. Rubenstein or someone was acting on his behalf.

[00:13:01] Speaker 01:
So even if the standard is now he's articulating something less than irrebuttable, some evidence, to the contrary, here,

[00:13:11] Speaker 01:
The IRS had that.

[00:13:15] Speaker 01:
Does that answer your question, Your Honor?

[00:13:18] Speaker 01:
So I'd like to answer what other questions the panel has for the government today.

[00:13:23] Speaker 02:
We don't have any questions.

[00:13:24] Speaker 02:
Thank you.

[00:13:24] Speaker 01:
Thank you.

[00:13:24] Speaker 01:
We'd ask you that you affirm the decision of the Court of Federal Claims.

[00:13:27] Speaker 01:
Thank you.

[00:13:36] Speaker 03:
Just to respond to the

[00:13:39] Speaker 03:
The issue about the payments of Mr. Rubenstein made those tax payments himself.

[00:13:44] Speaker 03:
There was no one else acting on his behalf.

[00:13:49] Speaker 02:
If he made the tax payments himself, then how can you say he was disabled?

[00:13:56] Speaker 02:
Your Honor, I think you're getting into the very point.

[00:14:02] Speaker 03:
I think that the revproc is designed to avoid.

[00:14:07] Speaker 03:
Just how sick was he?

[00:14:08] Speaker 03:
There was evidence at trial that he lived alone.

[00:14:12] Speaker 03:
He was able to shop.

[00:14:13] Speaker 02:
You're alleging or you allege that he was so sick that he's in order to meet the exemption.

[00:14:19] Speaker 02:
He was so sick that he could not take care of his own financial matters.

[00:14:23] Speaker 02:
But here he is signing his tax forms and sending them in.

[00:14:27] Speaker 02:
On the face, now you get a document from the doctor that says he's got Alzheimer's disease and he's unable to

[00:14:35] Speaker 02:
handle any of the finances during this period of time, but yet they got tax firms to show that he is filing taxes.

[00:14:43] Speaker 02:
So they say it's either him or somebody on his behalf.

[00:14:46] Speaker 02:
And if it's somebody on his behalf, then they don't meet the exception.

[00:14:50] Speaker 03:
Wow.

[00:14:50] Speaker 03:
Well, Your Honor, he had dementia.

[00:14:52] Speaker 03:
Whether it was Alzheimer's or some other form of dementia, that was an issue at trial.

[00:14:56] Speaker 03:
But he was definitely demented.

[00:14:59] Speaker 03:
And I think one of the payments in the record

[00:15:02] Speaker 03:
It looks like he made the same payment twice because he was confused.

[00:15:10] Speaker 00:
The court below looked at all the evidence, which included statements made by the very same doctor saying something that sounds quite the opposite of what he said to the IRS.

[00:15:20] Speaker 00:
And so the court looked at all that evidence and came to a conclusion, including what you're talking about, the existence of the overpayment, the fact that the taxpayers

[00:15:29] Speaker 00:
that he was signing his own return forms.

[00:15:32] Speaker 00:
All of that was considered in Wade, and a conclusion was drawn on credibility, and that's virtually unreviewable.

[00:15:39] Speaker 00:
It sounds like now you're trying to get us to look into the record, and you're relying on the record to try to show that he was, in fact, demented in your words.

[00:15:49] Speaker 03:
I think you're moving your hands to show your weighing of evidence.

[00:15:55] Speaker 03:
And I think that's exactly what the rep proc was designed to avoid.

[00:15:58] Speaker 03:
And yes, the lower court did do that.

[00:16:01] Speaker 03:
The questions of, well, was he able to pay his bills on time?

[00:16:04] Speaker 02:
The lower court is entitled to weigh evidence.

[00:16:07] Speaker 03:
But then again, we're not.

[00:16:09] Speaker 03:
And you're right.

[00:16:10] Speaker 03:
I'm suggesting that the lower court shouldn't have done that, that the lower court should have asked, was the revproc complied with?

[00:16:17] Speaker 04:
So your view is, if you make this submission and comply with all the requirements in that list, even if the IRS has documented our evidence,

[00:16:25] Speaker 04:
that flatly contradicts the doctor's affidavit.

[00:16:28] Speaker 04:
They have to nonetheless blindly accept it.

[00:16:35] Speaker 03:
Your question presumes that the medical statement was false.

[00:16:41] Speaker 03:
I suppose there could be a case where a doctor falsely certifies that someone is disabled.

[00:16:48] Speaker 03:
And I guess in that case.

[00:16:51] Speaker 03:
That's this case.

[00:16:53] Speaker 03:
Um, no, no.

[00:16:55] Speaker 03:
Whether and how much?

[00:16:57] Speaker 04:
The district, the court of federal claims found that the doctor's certification was not credible.

[00:17:05] Speaker 03:
I don't think the judge found that that certification was incredible.

[00:17:08] Speaker 03:
She found that the doctor himself, you know, it wasn't just the doctor himself had some credibility.

[00:17:16] Speaker 04:
He either lied to the DMV or he lied to the IRS.

[00:17:19] Speaker 04:
They're two flatly contradictory statements.

[00:17:23] Speaker 03:
Well, at trial, he explained that his DMV statement had notes.

[00:17:28] Speaker 03:
Which she completely rejected his explanation of that.

[00:17:29] Speaker 03:
That is true, Your Honor.

[00:17:30] Speaker 03:
That is true, Your Honor.

[00:17:33] Speaker 03:
Again, absent fraud, I think that the rule that we would like this court to find is that compliance with the revproc affirmatively establishes disability.

[00:17:44] Speaker 03:
There's plenty of case law where failure to comply with the revproc meant that

[00:17:49] Speaker 03:
The taxpayer wasn't disabled.

[00:17:51] Speaker 03:
We think that strict compliance with the rev-proc should equal a finding of disability.

[00:17:56] Speaker 02:
Okay.

[00:17:56] Speaker 02:
I think we understand your argument.

[00:17:58] Speaker 02:
Thank you.

[00:17:59] Speaker 02:
Thank you.