Fifth Circuit Reverses Dismissal of Wrongful Levy Suit as Untimely

W. EUGENE DAVIS, Circuit Judge:

Plaintiff-Appellant Kathryn Rothkamm and her husband filed separate tax returns. Rothkamm's husband incurred a tax liability, and the IRS levied her account at a bank, which she asserts was her separate property. She initially sought a Taxpayer Assistance Order ("TAO") through the Taxpayer Advocate Service but obtained no relief. She then filed an administrative claim and, when that was denied, filed this suit for wrongful levy. The IRS filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) on the ground that the suit was untimely under the applicable nine-month statute of limitations and had not been tolled by her TAO application. The district court concluded that Rothkamm was not a "taxpayer" for purposes of the TAO statute, 26 U.S.C. § 7811, and that, even if she was, § 7811(d) would not toll the running of the statute of limitations in this case. Accordingly, the district court dismissed for lack of subject matter jurisdiction. Rothkamm appealed, arguing both that she is a "taxpayer" under section 7811 and that the nine-month statute of limitations was tolled by her TAO application. For the reasons set forth below, we agree on both grounds and therefore reverse and remand.

As the district court explained, the IRS levied Rothkamm's account on April 18, 2012. Thus, the general statute of limitations would have expired on January 18, 2013, absent any tolling. Rothkamm's administrative wrongful levy claim, which she filed on May 15, 2013, would toll the running of the statute of limitations if filed within the statute of limitations. Thus, the core question is whether, as Rothkamm contends, the statute of limitations was tolled while her application for a TAO was pending before the TAS. If so, her administrative claim under § 6343(b) would also have been timely, and the statute of limitations for filing suit would have been suspended until January 1, 2014, months after this suit was filed on September 6, 2013."⁴ The district court summarized the key question and the parties' arguments as follows:

Resolution of this appeal turns on the TAO statute, 26 U.S.C. § 7811, which generally provides:

The IRS has issued regulations for section 7811, found in 26 C.F.R. § 301.7811-1. Our interpretation is guided by the Supreme Court's two-step test set out in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984):

B. Rothkamm Is a "Taxpayer" under Section 7811.

The district court concluded that Rothkamm cannot be a "taxpayer" under section 7811, reasoning as follows:

The Government argued that because "taxpayer" was not defined in § 6511 to mean "person who paid the tax," the definition of "taxpayer" must be supplied by the Internal Revenue Code's general definition set out in § 7701(a)(14), which the Government asserted narrowly meant only the person against whom a tax was assessed.¹⁷ The Supreme Court disagreed, explaining that § 7701(a)(14)'s definition of "taxpayer," which is generally applicable to the entire Internal Revenue Code, is broad enough to include a person who pays a tax assessed against another:

Following Williams, Congress did not revise § 7701(a)(14), so the Supreme Court's interpretation stands. Thus, under § 7701(a)(14), the word "taxpayer" means not only the person against whom a tax is assessed (here, Rothkamm's husband) but also the person who actually pays the tax (here, Rothkamm herself). Pursuant to § 7701(a), that definition applies throughout Title 26 "where not otherwise distinctly expressed or manifestly incompatible with the intent thereof."

The district court in its order and the IRS in its brief on appeal cited EC Term of Years Trust v. United States, 550 U.S. 429 (2007), apparently for the proposition that the definition of "taxpayer" is somehow limited to the person against whom the tax is assessed in the wrongful levy context.²¹ That is not what that case says, however. In EC Term of Years Trust, the plaintiff, a trust, sued to recover property which it claimed had been wrongfully levied by the Government. The question was not whether a person in the trust's position could be a "taxpayer" under § 7701(a)(14). Indeed, the Williams court had already held that "subject to" in § 7701(a)(14) means someone who has actually paid a tax assessed against another, so the trust would meet that definition.

Rather, EC Term of Years Trust concerned the proper remedy (and thus statute of limitations) for a third-party payer (i.e., not the assessed taxpayer) who had paid the tax because of a wrongful levy.²² The trust had filed suit under § 1346(a)(1), the same general statute the third-party "taxpayer" had used in Williams to obtain a refund of the wrongfully paid tax. The Government argued that the claim was required to be brought under a more specific statute enacted after Williams, 26 U.S.C. § 7426(a)(1) (the same statute under which Rothkamm sued in this case), which provided at the time: "If a levy has been made on property . . . any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in . . . such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court."²³ If the trust could bring suit under § 1346(a)(1), its suit would be timely, but it would be time-barred under § 7426(a)(1)'s stricter nine-month statute of limitations.

The Supreme Court noted that the difference was that the plaintiff in Williams had no means of obtaining relief other than suing under the general statute, § 1346; whereas Congress had later enacted specific relief for parties in the same position as the trust, § 7426, which carried a much shorter nine-month statute of limitations. More fully:

Nothing in EC Term of Years Trust concerned the definition of "taxpayer" found in § 7701(a)(14). The Court did not cite the statute or discuss its definition because it was not necessary for resolution of the case. Section 7426(a)(1) is not written in terms of "taxpayer" versus "non-taxpayer" but applies to "any person (other than the person against whom is assessed the tax out of which such levy arose)" whose property was wrongfully levied to pay a tax. Such a person is unquestionably "subject to" the tax and therefore is a "taxpayer" under § 7701(a)(14), but that definition has nothing to do with the issue presented in EC Term of Years Trust: whether such a person may still file suit under § 1346(a)(1) or must file suit under the more specific statute, § 7426(a)(1).

All of which is to say that Williams defined "taxpayer" broadly under § 7701(a)(14) to include not only the assessed taxpayer but also a person who actually pays the tax, and EC Term of Years Trust did nothing to alter that definition. It simply held that a third-party (relative to the assessed taxpayer) whose property is wrongfully levied must bring suit under § 7426(a)(1) rather than § 1346(a)(1) because § 7426(a)(1) specifically covers that situation. In this case, Rothkamm brought suit under § 7426(a)(1) and has always conceded that the nine-month statute of limitations applies to her case.

The question here is whether Rothkamm is a "taxpayer" under the TAO statute, § 7811, such that she could even apply for a TAO in the first place and potentially toll the running of the statute of limitations under § 7811(d), as discussed in the next part. Because, under Williams, she is a "taxpayer" under the default definition set out under § 7701(a)(14), we must determine whether the TAO statute, § 7811, and the statute creating the Office of the Taxpayer Advocate, § 7803, "distinctly express" a definition of "taxpayer" that is different from or somehow "manifestly incompatible" with the default definition set out in § 7701(a)(14).

In establishing the Office of the Taxpayer Advocate in § 7803(c), Congress set out the Office's general functions as follows:

Similarly, the statute governing TAOs, § 7811, neither "specifically expresses" a more limited definition of "taxpayer" nor is "manifestly incompatible" with § 7701(a)(14)'s broad definition. Most notably, § 7811(a)(1) provides:

We now turn to the question of whether § 7811(d) tolled the running of the statute of limitations when Rothkamm filed her TAO application.

C. Section 7811 Provides for Tolling under These Circumstances.

Although the district court concluded that Rothkamm was not a "taxpayer" under § 7811 and therefore could not avail herself of the TAO scheme in the first place, it ruled, in the alternative, that the statute would not allow tolling under these circumstances even if she were a "taxpayer":

It is plain from the language of the statute that because subsection (d) applies to all of subsection (b), it benefits both the IRS and the taxpayer, essentially pausing the running of the statutes of limitations applicable to both parties so that neither one is prejudiced by the TAO process. For instance, subsection (d), through subsection (b)(2)(A), tolls the statute of limitations for collection actions by the IRS, meaning the IRS does not lose any time to pursue collections when a taxpayer pursues a TAO. Likewise, subsection (d), through subsection (b)(1), tolls the statute of limitations for actions "to release property of the taxpayer levied upon." By definition, such an action is one by the taxpayer, and any tolling on such an action necessarily benefits the taxpayer. (It is also, of course, precisely the action at issue in this case.) Thus, the taxpayer may pursue a TAO without fear that the process -- which Congress expressly designed to assist taxpayers -- will prejudice her administrative or judicial rights in the event she does not obtain TAO relief. Subsection (d)'s plain language means that neither the IRS nor the taxpayer is any worse off when a taxpayer decides to pursue TAO relief because all relevant statutes of limitations are tolled. Under the plain terms of the statute, this tolling occurs automatically until the National Taxpayer Advocate reaches a decision on the TAO application, without regard to any discretion on the part of the IRS.

Several cases and secondary authorities, tracking the language of § 7811(d) confirm that the statute of limitations is tolled during the pendency of an application for a TAO, with no reference to any exception or any discretion on the part of the IRS to allow or disallow the tolling. See United States v. Carinos Ambulance Serv., Inc., 654 F. Supp. 2d 52, 59-60 (D.P.R. 2009) (noting that the statute of limitations under 26 U.S.C. § 6502 is tolled from "the date the taxpayer submits Form 911 (Application for Taxpayer Assistance Order) until the date when the National Taxpayer Advocate decides with regards to the submitted application, (26 U.S.C. § 7811(d)(1))"); In re Turner, 182 B.R. 317, 329 (Bankr. N.D. Ala. 1995), adhered to on reconsideration, 195 B.R. 476 (Bankr. N.D. Ala. 1996) (noting that the statutes of limitation under 26 U.S.C. §§ 6501(c)(4) and 6502(a) "are suspended when the taxpayer files an application for a Taxpayer Assistance Order, and do not resume until the IRS's Taxpayer Ombudsman makes a decision on the taxpayer's application." (citing § 7811(d))); In re Gore, 182 B.R. 293, 304 (Bankr. N.D. Ala. 1995) (same); 20A Federal Procedure, Lawyers Edition § 48:1497 ("The running of any period of limitation with respect to any action for the issuance of a taxpayer assistance order will be suspended for: (1) the period beginning on the date of the taxpayer's application for taxpayer assistance and ending on the date of the National Taxpayer Advocate's decision with respect to such application . . . ."); 34 Am. Jur. 2d Federal Taxation ¶ 70627 ("The running of any limitations period . . . with respect to any action related to TAO . . . is suspended for (a) the period beginning on the date of the taxpayer's application for the TAO and ending on the date of the National Taxpayer Advocate's decision on the application . . . ." (footnote omitted)).

Here, Rothkamm filed an application for a TAO for return of property subject to a wrongful levy, which is one of the proper subjects of a TAO under § 7811(b). Under the plain terms of § 7811(d)(1), "[t]he running of any period of limitation with respect" to that wrongful levy action was tolled from the times he filed her application until the time a decision was made on it. The nine-month statute of limitations for an action under § 7426(a) certainly qualifies as "any period of limitation" for a wrongful levy action, so it was tolled until a decision was made on her TAO application. Because her claim was tolled while she pursued the TAO, her later administrative wrongful levy claim under § 6343(b) was timely and, in turn, tolled her claim so that this suit was timely.

The district court also quoted the following sentence from 26 C.F.R. § 301.7811-1(b): "A taxpayer's right to administrative or judicial review will not be diminished or expanded in any way as a result of the taxpayer's seeking assistance from TAS." There are two problems with the district court's reliance on that sentence. First, under Chevron, if the language of the statute, § 7811(d), clearly provides for tolling (i.e., a waiver of sovereign immunity), then that ends the inquiry. The regulation cannot alter what Congress has clearly set out in the statute. Second, the sentence in the regulation the district court quotes comes from a subsection generally discussing TAOs and says nothing specifically about tolling:

The case law cited by the district court in support of its conclusion is not binding and is, at any rate, deeply flawed. Most notably, the district court relied on Demes v. United States, 52 Fed. Cl. 365, 373 (Fed. Cl. 2002), which indeed concluded that the IRS has discretion to effect tolling on the taxpayer's behalf. The problem is that the Demes court cited no relevant support for that conclusion. The only authorities it cited -- 26 U.S.C. § 7811(a), 26 C.F.R. § 301.7811-1(c)(3), and Inman v. Comm'r, 871 F. Supp. 1275 (E.D. Ca. 1994) -- say nothing about tolling.³⁶ Remarkably, the Demes court did not address either § 7811(d) or 26 C.F.R. § 301.7811-1(e), which actually establish the tolling rules.³⁷ Because Demes provided no viable support for its conclusion, it is not even persuasive authority, nor is any case that relies on Demes.³⁸

In sum, the district court failed to construe the plain language of § 7811(d) (or even the associated regulation on tolling, 26 C.F.R. § 301.7811-1(e)), and there is no viable support for its conclusion that the statutes and regulations somehow give the IRS discretion to determine whether or not a TAO applicant's claim is tolled. Congress did not provide the IRS with that discretion under § 7811(d), and the only discretion granted in the regulations is the discretion granted to the Ombudsman to lengthen the period of tolling beyond the date of the decision on the TAO application.

Next, the IRS argues that § 7811(d) cannot toll this wrongful levy action because "the tolling provisions of § 7811(d) do not mention wrongful levy actions under § 7426, and the none [sic] of the four categories of 'actions' subject to tolling under § 7811(b)(2) apply to this case." Again, § 7811(d) provides: "The running of any period of limitation with respect to any action described in subsection (b) shall be suspended . . . ." Subsection (b) provides:

In short, the IRS has failed to offer a reasonable alternative construction of the plain language of § 7811(d), which provides for tolling under the circumstances presented herein.

² 26 U.S.C. § 7426(a)(1).

³ 26 U.S.C. § 6532(c)(1) (generally concerning "suits by persons other than taxpayers").

⁴Rothkamm, 2014 WL 4986884, at *2 (record citations omitted).

⁵Id. (record citations omitted).

⁶Id. at *3.

⁷Davis v. United States, 597 F.3d 646, 649 (5th Cir. 2009) (citing St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009)).

⁸F.A.A. v. Cooper, 132 S. Ct. 1441, 1448, 182 L. Ed. 2d 497 (2012) (citing cases).

⁹Id. (citations omitted).

¹⁰Id.

¹¹ 26 U.S.C. § 7811(a).

¹² 467 U.S. at 842-43 (footnotes omitted).

¹³Rothkamm, 2014 WL 4986884, at *3.

¹⁴ 26 U.S.C. § 7701(a)(14).

¹⁵ 514 U.S. at 529.

¹⁶Id. at 532-33.

¹⁷Id. at 533-34.

¹⁸Id. at 535 (footnotes omitted).

¹⁹Id.

²⁰Id. at 536-38.

²¹See Rothkamm, 2014 WL 4986884, at *3. The only other case cited by the district court, Hyler v. C.I.R., 84 T.C.M. (CCH) 717 (T.C. 2002), aff'd, 104 F. App'x 13 (9th Cir. 2004), concerned the finer points of procedure under § 7811 by a person against whom a tax was levied and who was subjected to an IRS lien. It said nothing about the definition of "taxpayer" under § 7811 and did not involve someone who paid a tax assessed against another person. Thus, it is not relevant to this case.

²² 550 U.S. at 430.

²³ 550 U.S. at 431.

²⁴Id. at 434-35.

²⁵Id. at 435-36.

²⁶ 26 U.S.C. § 7803(c)(2)(A).

²⁷ 25 U.S.C. § 7811(a)(1).

²⁸See 26 C.F.R. § 301.7811-1.

²⁹See 26 C.F.R. § 301.7811-1(a), Ex. 1 (IRS levies A's bank account; does not specify whether A is assessed taxpayer or third-party taxpayer); § 301.7811-1(e), Exs. 1, 2 and 3 (do not specify whether person subject to levy is an assessed taxpayer or a third-party taxpayer paying a tax assessed against another).

³⁰Rothkamm, 2014 WL 4986884, at *3.

³¹ 26 U.S.C. § 7811(b).

³² 26 U.S.C. § 7811(d) (emphasis added).

³³ 26 U.S.C. § 7811(c).

³⁴ 26 C.F.R. § 301.7811-1(b).

³⁵ 26 C.F.R. § 301.7811-1(e)(1)-(3).

³⁶ 52 Fed. Cl. at 373.

³⁷Id.

³⁸ The district court also relied on Qureshi v. United States, 200 F. App'x 973, 975 (Fed. Cir. 2006), which itself cited Demes. Qureshi did not concern the IRS's supposed discretion to toll the running of the statute of limitations but its "discretion to provide a taxpayer with relief under certain circumstances." Thus, it is inapposite to the question presented here.

Kathryn Rothkamm claims that the IRS wrongfully levied a certificate of deposit issued solely in her name to satisfy tax liabilities of her husband. The Internal Revenue Code provides two different avenues to challenge a wrongful levy: (1) an administrative appeal; or (2) a lawsuit in federal court. By either avenue, the aggrieved party must act within nine months of the levy.¹ Rothkamm did not do so. I dissent from the majority's newly minted tolling rule. While this creativity is driven by a desire to achieve fairness, it suffers the vice common to such endeavors -- it does the opposite by disrupting a carefully structured regime for the resolution of disputes between the IRS and property owners.

• March 6, 2012: The IRS issues a Notice of Levy to a bank of its levy upon a bank account that Rothkamm says was her property.

• April 18, 2012: The bank remits the contents of the account to the IRS.

• April 30, 2012: Rothkamm files an application for assistance with the Taxpayer Advocate Service ("TAS").

• October 11, 2012: TAS closes Rothkamm's case, advising that it is unable to provide assistance.

• May 15, 2013: Rothkamm files an administrative request with the IRS.

• July 1, 2013: The IRS denies Rothkamm's administrative request.

• September 6, 2013: Rothkamm sues the IRS in federal court.⁶

Appealing in its simplicity, this plain language argument does not survive closer scrutiny for it steps past critical language. Subsection (d) provides that an application for a TAO suspends the running of the period of limitation for "action[ s ] described in subsection (b)."⁸ We should not assume that Congress's use of the word "action" was accidental. To the contrary, "[a] normal rule of statutory interpretation is that when Congress uses the same word in different parts of a statute, it intended each to carry the same meaning."⁹ In this case, this rule dictates that "action" has the same meaning in subsection (b) that it does in subsection (d). That is, subdivision (d) suspends the period of limitation only for the suits and proceedings in subdivision (b) that Congress described using the word "action." Since Congress did not use the word "action" in subsection (b)(1), § 7811(d) did not toll the period of limitation for Rothkamm's wrongful levy claim -- and her suit is untimely. The majority counters that this reading of § 7811 ignores that subsection (d) refers to all "action[s]" in subsection (b), not just those in subsection (b)(2). But this argument fails on its own terms; I contend only that subsection (b)(1) does not describe an "action," not that subsection (d) does not apply to, or embrace, subsection (b)(1). If Congress had intended to suspend the period of limitation for all suits or proceedings described in subsection (b), it could have used either of those words -- but it chose not to do so.

If the language of § 7811 is not clear enough, the larger context and purpose of subdivision (d) eliminate any residual doubt that this is the proper interpretation.¹⁰ Although it may seem inequitable that subsection (d) only suspends the period of limitations for actions brought by the IRS, this was a sensible choice given that TAS -- the agency that issues TAOs -- lacks the power to direct taxpayers to do anything. As a result, nothing prevents a taxpayer from pursuing other remedies while seeking a TAO. In fact, a TAO "is intended to supplement existing procedures if a taxpayer is about to suffer or is suffering a significant hardship," not "to be a substitute for an established administrative or judicial review procedure."¹¹ TAS can, however, issue a TAO that bars the IRS from pursuing certain actions against a taxpayer.¹² Subdivision (d) responds to the reality that a taxpayer can use a TAO to tie the enforcement arms of the IRS with a symmetry achieving result -- limitation does not run against the Government while the TAO blocks access to enforcement.

The legislative history of § 7811 supports this view of subdivision (d). In the Conference Report adopting § 7811, the conferees provided only one example of the type of statute of limitation that would be suspended by subdivision (d): "the statute of limitation under sec. 6501 relating to the assessment or collection of tax."¹³ The limited case law interpreting § 7811 has similarly implied that subdivision (d) suspends the statute of limitations only for actions brought by the IRS. Indeed, the three cases cited by the majority all group § 7811(d) along with "legal provisions scattered within the IRC [that] provide for the suspension of the ten (10) year collection process."¹⁴ Other cases are in accord.¹⁵ The majority also acknowledges that the only case somewhat on point -- Demes v. United States -- concludes that a plaintiff cannot use § 7811 to toll the statute of limitations.¹⁶ There is no reason to reach a different result here.¹⁷

Rothkamm also overstates the practical hardship of simultaneously pursuing other remedies while seeking a TAO. Before taking the step of filing suit in federal court, a taxpayer like Rothkamm may submit an administrative request to the IRS for the return of any wrongfully levied property.²³ This is not an onerous process; the taxpayer must submit a written request with the same information that she likely has already provided to TAS: (1) her name and address; (2) a description of the levied property; (3) a description of her basis for claiming an interest in the levied property; (4) the name and address of the person against whom the tax was assessed; (5) the IRS office that issued the levy; and (6) the date of levy.²⁴ The compilation of this basic information -- which again, has likely already been compiled for TAS -- is not the type of "hardship" that Congress created TAS to assuage.²⁵ Moreover, Rothkamm did not even have to assume this minimal burden in this case. After TAS closed her application for assistance in October 2012, Rothkamm still had two months to file an administrative request with the IRS before the period of limitation expired.²⁶ She has never explained why she waited until May 2013 to seek relief.

The majority's interpretation may also hurt more taxpayers than it helps. "The tax code is an intricate web and demands clear rules so that it may be administered with as little uncertainty as possible."³² The majority's holding, however, replaces the clarity of 26 U.S.C. § 6532(c) with a new tolling rule that stops and starts the nine-month period of limitation at indefinite dates. This new system may prove confusing to taxpayers looking to calculate deadlines ahead of time. Taxpayers who wait several months to file a request for TAS assistance, for instance, may have no warning until TAS actually denies their claim that they need to move quickly to preserve their rights. There is also little indication that the current system is not working. If a taxpayer wants to challenge an IRS levy on the merits without the full expense and effort of a federal suit, she can avail herself of what the Supreme Court has called "an effective and inexpensive" remedy -- an administrative request for the return of the property.³³ The TAS review process may be inexpensive and most effective in correcting clerical errors, such as misdescriptions of property. It is not an avenue for resolution of legal issues. Indeed, by law, TAS cannot "make a substantive determination of any tax liability." It thus lacks the ability to help taxpayers like Rothkamm who raise complex legal questions.³⁴ Perhaps this is why no court has found such a tolling as has been created here and there are only one or two reported cases in which a taxpayer has tried to invoke § 7811(d) as a basis for tolling -- even though TAOs have been available since 1989.³⁵ Our court should be wary of disrupting Congress's comprehensive and functional scheme for resolving wrongful levy claims to save one taxpayer.

Rothkamm cannot meet this burden. At the very least, there is a "plausible interpretation" of § 7811(d) "that would not authorize money damages against the Government." The majority points to the Supreme Court's statement in Cooper that it has never required Congress to "state its intent in any particular way" or "use magic words" to waive sovereign immunity.⁴⁰ But this statement only iterates the unremarkable proposition that Congress need not use the language "this statute waives the Government's sovereign immunity" to effectuate a waiver. This acknowledgment did not dilute the insistence upon "an unmistakable statutory expression of congressional intent to waive the Government's immunity"⁴¹ -- indeed the Supreme Court upheld the immunity of the Government in Cooper on the basis of this very rule.⁴²

Any ambiguity in § 7811(d) also creates another problem for Rothkamm. Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., we defer to an agency's "permissible construction" of an ambiguous statute.⁴³ That is, if an agency issues a regulation interpreting an ambiguous provision of a statute, we defer to the agency's regulation as long as it represents a "permissible construction." "An agency's interpretation is permissible if it is reasonable. The question of reasonableness is not whether the agency's interpretation is the only possible interpretation or whether it is the most reasonable, merely whether it is reasonable vel non."⁴⁴

As noted by the majority, the IRS has issued a regulation that addresses the interpretation of § 7811(d).⁴⁵ This regulation states that "[a] taxpayer's right to administrative or judicial review will not be diminished or expanded in any way as a result of the taxpayer's seeking assistance from TAS."⁴⁶ Though this provision does not use the word "tolling," I disagree with the majority that it does not concern the issue before our court. By its terms, this provision prevents taxpayers from expanding their right to administrative or judicial review -- such as by extending the period of limitation -- through seeking TAS assistance. And contrary to the majority's suggestion, this correct statement of the law is not contradicted by the examples provided in the subdivision directly addressing tolling. Though the majority reproduces these examples as support for its position, it fails to appreciate that all three concern the tolling of the IRS's period of limitation on collection -- and not one applies subdivision (d) to a taxpayer's period of limitation.⁴⁷ Even assuming § 7811(d) were ambiguous, we ought defer to the IRS's reasonable construction of this provision.⁴⁸ I would do so.

²Oxford Capital Corp. v. United States, 211 F.3d 280, 282-83 (5th Cir. 2000) (per curiam) (citations omitted).

³Id.

⁴See 26 C.F.R. § 301.6343-2(b).

⁵See 26 U.S.C. § 7426(a)(1). The Supreme Court has held that a general tax-refund claim is not available. See EC Term of Years Trust v. United States, 550 U.S. 429, 433-36 (2007).

⁶See Rothkamm v. United States, No. 3:13-cv-00589-BAJ-RLB, 2014 WL 4986884, at *1 (M.D. La. Sept. 15, 2014).

⁷See United Sand & Gravel Contractors, 624 F.2d at 735-36.

⁸ 26 U.S.C. § 7811(d) (emphasis added).

⁹Little v. Shell Exploration & Prod. Co., 690 F.3d 282, 286 (5th Cir. 2012) (citing Dep't of Revenue v. ACF Indus., Inc., 510 U.S. 332, 341-42 (1994)).

¹⁰ Though the majority limits its analysis to the language of § 7811, "[t]his Court looks at the 'language of the statute as well as the design, object and policy in determining the plain meaning of a statute.'" United States ex rel. Babalola v. Sharma, 746 F.3d 157, 161 (5th Cir. 2014) (quoting Hightower v. Tex. Hosp. Ass'n, 65 F.3d 443, 448 (5th Cir. 1995)); see also King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) ("[A] statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on context." (citation omitted)).

¹¹ 26 C.F.R. § 301.7811-1(b).

¹² 26 U.S.C. § 7811(b).

¹³ 2 H.R. Rep. No. 100-1104, at 215 (1988) (Conf. Rep.); see I.R.S. Litigation Bulletin 360 (Sept. 1990), 1990 WL 1086174 ("The legislative history identifies the limitations period in section 6501 (assessment and collection of tax) as a statute subject to the suspension. Thus, we believe that only those statutes of limitation that would continue to run to the detriment of the Service when an application for a TAO is filed, are subject to the suspension.").

¹⁴United States v. Carinos Ambulance Serv., Inc., 654 F. Supp. 2d 52, 59 (D.P.R. 2009); see also In re Turner, 182 B.R. 317, 329 (Bankr. N.D. Ala. 1995) ("All suspension provisions [including § 7811(d)] are designed and intended to avoid prejudice to the IRS's ability to collect during periods of time in which collection or assessment is prohibited by law [or otherwise impeded]."), adhered to on reconsideration, 195 B.R. 476 (Bankr. N.D. Ala. 1996); In re Gore, 182 B.R. 293, 304 (Bankr. N.D. Ala. 1995) (same).

¹⁵See, e.g., White v. Comm'r, 899 F. Supp. 767, 773 (D. Mass. 1995) ("An application merely suspends the running of the period of limitations on collection."); United States v. Johnson, No. 2:12-CV-00097, 2013 WL 1403973, at *1 (S.D. Tex. Apr. 5, 2013) ("[The period of limitation on assessment] is also suspended during the time that a taxpayer applies for and obtains a decision on a Taxpayer Assistance Order."); Next Generation Wireless, Ltd. v. United States, No. 06-CV-838, 2008 WL 4115516 (S.D. Ohio Aug. 28, 2008) (considering only whether the application for a TAO extended the period of limitation for filing a wrongful levy claim under § 6532(c)(2) -- and ignoring § 7811(d)); Scheafnocker v. Comm'r, 642 F.3d 428, 441 (3d Cir. 2011) (per curiam) (Nygaard, J., concurring) (same), vacated on other grounds, No. 08-2655, 2012 WL 1854183 (3d Cir. Apr. 24, 2012).

¹⁶ 52 Fed. Cl. 365, 373 (Fed. Cl. 2002).

¹⁷ The majority also cites two treatises as support for its position. Yet neither does anything more than beg the question by paraphrasing the language of § 7811(d).

¹⁸ I.R.S. Form 911 (Feb. 2015), http://www.irs.gov/pub/irs-pdf/f911.pdf (emphasis added).

¹⁹ 26 U.S.C. § 7803(c)(2)(A)(i).

²⁰See Taxpayer Advoc. Serv.: Your Voice at the IRS, http://www.taxpayeradvocate.irs.gov (last visited Sept. 15, 2015).

²¹See Reports to Congress, Taxpayer Advoc. Serv.: Your Voice at the IRS, http://www.taxpayeradvocate.irs.gov/reports (last visited Sept. 15, 2015); see also 26 U.S.C. § 7803(c)(2)(A)(ii)-(iv) (requiring TAS to "identify areas in which taxpayers have problems in dealings with the Internal Revenue Service" and "propose changes to the administrative practices of the Internal Revenue Service" and "identify potential legislative changes" to mitigate these problems).

²² Notably, Rothkamm has not argued that TAS did not inform her about the period of limitation for filing a wrongful levy action. Cf., e.g., Scheafnocker v. Comm'r, 642 F.3d 428, 441 (3d Cir. 2011) (per curiam) (Nygaard, J., concurring) ("[I]n the Taxpayer Advocate's denial of Scheafnocker's original request for assistance, there was notice of her right to appeal to the District Court, along with a recitation of the statutes dictating the time-frame in which this appeal must be filed."), vacated on other grounds, No. 08-2655, 2012 WL 1854183 (3d Cir. Apr. 24, 2012); Austin & Laurato, P.A. v. United States, No. 8:12-cv-1648-T-17-AEP, 2012 WL 5907066, at *2 (M.D. Fla. Nov. 26, 2012) ("[T]he Taxpayer Advocate Service denied Plaintiffs' requested assistance and directed them to file a lawsuit."), aff'd, 539 F. App'x 957 (11th Cir. 2013).

²³ 26 U.S.C. § 6532(c)(2).

²⁴ I.R.S. Publication 4528 (Nov. 2007), http://www.irs.gov/pub/irs-pdf/p4528.pdf; see also 26 C.F.R. § 301.6343-2(b).

²⁵ 26 U.S.C. § 7811(a)(2).

²⁶See Rothkamm v. United States, No. 3:13-cv-00589-BAJ-RLB, 2014 WL 4986884, at*1 (M.D. La. Sept. 15, 2014).

²⁷EC Term of Years Trust v. United States, 550 U.S. 429, 431-32 (2007).

²⁸United Sand & Gravel Contractors, Inc. v. United States, 624 F.2d 733, 739 (5th Cir. 1980).

²⁹See id.; see also Becton Dickinson & Co. v. Wolckenhauer, 215 F.3d 340, 351 (3d Cir. 2000) ("Were we to hold that section 6532(c) can be equitably tolled, we would delay the final disposition of competing claims in cases like this one and would jeopardize, perhaps even destroy, the IRS's ability to impose a levy on other assets owned by a delinquent taxpayer.").

³⁰ 550 U.S. at 433-36.

³¹Id. at 434.

³²Sidell v. Comm'r, 225 F.3d 103, 111 (1st Cir. 2000).

³³United States v. Nat'l Bank of Commerce, 472 U.S. 713, 728 (1988); see also Raymond v. United States, 983 F.2d 63, 66 (6th Cir. 1993) (agreeing that "the reason for extending the limitations period in cases where an administrative claim is filed is to give the Secretary ample opportunity to consider such a request on the merits before the matter comes before the courts"); cf. Baddour, Inc. v. United States, 802 F.2d 801, 808 (5th Cir. 1986) (concluding that the two available avenues for challenging a wrongful levy make it unnecessary "[t]o open up an entirely new avenue of relief").

³⁴ 26 C.F.R. § 301.7811-1(b).

³⁵ Technical and Miscellaneous Revenue Act of 1988, Pub. L. No. 100-647, tit. VI, § 6230(d), 102 Stat. 3342, 3733-34.

³⁶United States v. Dalm, 494 U.S. 596, 608 (1990); see also Block v. North Dakota, 461 U.S. 273, 287 (1983) ("When waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity.").

³⁷F.A.A. v. Cooper, 132 S. Ct. 1441, 1453 (2012).

³⁸Id. at 1448 (citations omitted); see also Freeman v. United States, 556 F.3d 326, 334-35 (5th Cir. 2009).

³⁹See Freeman, 556 F.3d at 334; St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009).

⁴⁰Cooper, 132 S. Ct. at 1448.

⁴¹Id.

⁴²See id. at 1453.

⁴³ 467 U.S. 837, 843 (1984).

⁴⁴ConocoPhillips Co. v. U.S. E.P.A., 612 F.3d 822, 831 (5th Cir. 2010).

⁴⁵ The Supreme Court has rejected the argument that tax regulations are entitled to less deference than other types of regulations. See Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55-57 (2011).

⁴⁶ 26 C.F.R. § 301.7811-1(b).

⁴⁷Id. § 301.7811-1(e)(3); see I.R.S. Program Manager Tech. Adv. Mem. 2007-429, at 4 (Mar. 9, 2001) (opining that the majority's expansive "interpretation [of § 7811(d)] would be inconsistent with the statutory language and inconsistent with the examples provided in the regulation").

⁴⁸ The IRS has also adopted this construction of § 7811(d) in various publications that are entitled to Skidmore deference. See I.R.S. Manual 13.1.14.3 (Oct. 31, 2004) ("A signed Form 911 or written statement will suspend the running of limitations periods for assessment or collection of tax under IRC § 6501 and § 6502. A Form 911 or written statement will not however, suspend the period of limitations for filing refund claims."); I.R.S. Litigation Bulletin 360, supra; I.R.S. Form 911, supra; I.R.S. Program Manager Tech. Adv. Mem. 2007-429, supra.