July 27, 2012
The taxpayers have filed their opening brief (literally! only 18 pages!) in Cadrecha. They focus on two points. First, they argue that the Court of Federal Claims mistakenly relied on an IRS official’s affidavit for conclusions about what transpired in telephone conversations, when the taxpayers were not given an adequate opportunity to dispute those facts. Therefore, the court erred in ruling at the motion to dismiss stage. Second, they argue that their claim should be viewed as timely in any event. The taxpayers reason that, since the IRS’s notice of disallowance referred to a May 2007 claim, the timely March 2007 claim was never actually disallowed and the two-year statute of limitations did not begin to run. More generally, the taxpayers throw themselves on the mercy of the Federal Circuit, relying on the unfairness of having been denied a refund to which they had a substantive entitlement, when the IRS’s processing of their timely claim contributed to the apparently late filing of a refund suit.
The government’s brief is due September 7.