Second Circuit to Resolve Disagreement Between Tax Court and Federal Circuit Over Availability of Interest Netting for Pre-1998 Tax Periods
April 24, 2012
[Note: Miller & Chevalier represents the taxpayer Exxon Mobil Corp. in this case.]
The government has appealed the Tax Court’s decision on interest netting in Exxon Mobil Corp. v. Commissioner, 136 T.C. No. 5 (Feb. 3, 2011). The briefing is now complete, and the Second Circuit (Judges Cabranes, Walker, and Winter) is scheduled to hear oral argument on April 25.
Congress expressly required global interest netting by enacting Code section 6621(d) in 1998. Before then, the IRS had sometimes taken advantage of the differential interest rates established in 1986 to collect net interest when no net tax was due. Specifically, for periods of overlapping indebtedness where the taxpayer owed money to the government for one tax year but the government owed money to the taxpayer for a different tax year, the government would not net the overlapping amounts, but rather would collect interest at the higher underpayment rate while paying interest to the taxpayer at the lower overpayment rate on the same amount. Section 6621(d) ended this practice by providing that “the net rate of interest . . . on such amounts” of overlapping indebtedness “shall be zero.” That net rate of zero can be implemented either by increasing the overpayment rate or decreasing the underpayment rate from what they would otherwise be in the absence of interest netting. Section 6621(d) applies prospectively without restriction, but Congress also enacted a “special rule” that makes the interest netting rule also apply to pre-1998 periods of overlapping indebtedness in certain circumstances. The Exxon Mobil case involves the construction of that special rule.
The special rule provides that section 6621(d) applies to past periods “[s]ubject to any applicable statute of limitation not having expired with respect to either a tax underpayment or a tax overpayment” on the July 22, 1998, effective date of section 6621(d). Taxpayers interpret this provision to mean that interest netting is available for past periods so long as the statute of limitations for either of the overlapping periods of indebtedness was open on the effective date. The IRS, however, has interpreted the special rule to mean that interest netting is available for past periods only if the statute of limitations for both of the overlapping periods of indebtedness was open on the effective date.
The issue was first litigated by Fannie Mae in the Court of Federal Claims, which held that the special rule was best read in accordance with the taxpayer’s position. The Federal Circuit, however, reversed. Federal National Mortgage Ass’n v. United States, 379 F.3d 1303 (Fed. Cir. 2004), rev’g, 56 Fed. Cl. 228 (2003). The Federal Circuit did not take issue with the statutory analysis of the Court of Federal Claims, but instead relied on an argument that was not presented below. The Federal Circuit reasoned that the special rule was a waiver of sovereign immunity that must be strictly construed in favor of the government; since the statutory language was capable of being read to support either position, the court concluded, that strict construction principle required a ruling in the government’s favor.
The Exxon Mobil case raises the same issue, but it arises in a different procedural posture and hence in a different jurisdiction. Exxon petitioned the Tax Court for a redetermination of deficiencies for its 1979-1982 tax years, and the Tax Court’s determination eventually resulted in an overpayment. The IRS paid interest on that overpayment at the regular overpayment rate, unadjusted for the fact that interest netting principles would have called for a higher rate because there was a period of overlapping indebtedness with underpayments that Exxon owed for the 1975-78 tax years. Exxon Mobil then filed a motion for redetermination of interest under Code section 7481 seeking additional overpayment interest through application of the interest netting rule of section 6621(d).
The IRS argued that interest netting did not apply because the statutes of limitations for the 1975-78 tax years were no longer open on July 22, 1998, although it acknowledged that the statutes of limitations for the overpayment leg of the overlap period were open on that date. The Tax Court declined to follow the Federal Circuit’s view and rejected the IRS’s argument. The Tax Court stated that “the special rule is not a waiver of sovereign immunity but an interest rate provision.” It added that, even if it were a waiver of sovereign immunity, that would not require the court to adopt a reading that contravened Congress’s intent to achieve the remedial purpose of relieving taxpayers from paying interest when no net tax was due.
The government’s brief on appeal relies heavily on the Federal Circuit’s decision in Fannie Mae. It argues that the Tax Court erred in rejecting the basic principle of that decision, asserting that “the special rule is a waiver of sovereign immunity because it authorizes recovery of certain retroactive refund claims for overpaid interest and thus ‘discriminates between those claims for overpaid interest Congress has authorized and those it has not’” (quoting Fannie Mae, 379 F.3d at 1310). Exxon Mobil’s brief first addresses the special rule independently, asserting that the natural reading of the text and the evident purpose of the special rule both indicate that Congress intended to allow interest netting for pre-1998 periods so long as one leg of the overpayment period was open. The brief then addresses the government’s sovereign immunity argument, arguing that the special rule is not a waiver of sovereign immunity and, even if it were, the canon of construction would not justify adopting an interpretation that would thwart the evident intent of Congress.