Pfizer Argues Suit for Overpayment Interest Was Timely

Pfizer Inc. and Subsidiaries
Appellant
v.
United States of America,
Appellee

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

ON APPEAL FROM THE DECISION OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR APPELLANT,
PFIZER INC. AND SUBSIDIARIES

Robert S. Walton
Russell R. Young
Susan E. Ryba
Baker & McKenzie LLP
300 East Randolph Street
Suite 5000
Chicago, IL 60601
(312) 861-8000

---

TABLE OF CONTENTS

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

STATEMENT IN SUPPORT OF ORAL ARGUMENT

JURISDICTIONAL STATEMENT

STATEMENT OF ISSUE

STATEMENT OF THE CASE

STATEMENT OF FACTS

Nature of the Dispute and the District Court's Opinion

Summary of Argument

ARGUMENT

Standard of Review

III. In the alternative, if this Court holds that the two-year statute of limitations should apply, it should reverse and remand on principles of equity

IV. If Pfizer lacks subject matter jurisdiction in the District Court, this Court should transfer Pfizer's action to the Court of Federal Claims under 28 U.S.C. § 1631

CONCLUSION

 

TABLE OF AUTHORITIES

Cases

Alexander Proudfoot Co. v. United States, 454 F.2d 1379 (Ct. Cl. 1972)

Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427 (1932)

Dalton v. Sw. Marine, 120 F.3d 1249 (Fed. Cir. 1997)

Doolin v. United States, 918 F.2d 15 (2d Cir. 1990)

Dugan v. United States, 227 Ct. Cl. 613 (1981)

EC Term of Years Tr. v. United States, 550 U.S. 429 (2007)

E.W. Scripps Co. v. United States, 420 F.3d 589 (6th Cir. 2005)

Exxon Mobil Corp. v. Commissioner, 689 F.3d 191 (2d Cir. 2012)

Filetech, S.A. v. France Telecom, S.A., 157 F.3d 922 (2d Cir. 1998)

Ford Motor Co v. United States, 768 F.3d 580 (6th Cir. 2014)

Four Star Oil & Gas Co. v. United States, 49 Fed. Cl. 755 (2001)

GE v. United States, 384 F.3d 1307 (Fed. Cir. 2004)

Godfrey v. United States, 997 F.2d 335 (7th Cir. 1993)

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)

Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990)

Jamison v. Fed. Trade Comm'n, 628 F. Supp. 1548 (D.D.C. 1986)

J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107 (2d Cir. 2004)

John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008)

Library of Congress v. Shaw, 478 U.S. 310 (1986)

Lotes Co. Ltd. v. Hon Hai Precision Indus. Co., Ltd., 753 F.3d 395 (2d Cir. 2014)

Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697 (2d Cir. 2000)

Lyons v. United States, 1992 U.S. Dist. LEXIS 19618, 71 A.F.T.R.2d (RIA) 551 (S.D. Iowa Nov. 10, 1992)

Marsh & McLennan Cos., Inc. v. United States, 50 Fed. Cl. 140 (2001), aff'd, 302 F.3d 1369 (Fed. Cir. 2002), cert. denied, 538 U.S. 925 (2003)

Martin v. Nickels & Dimes, Inc., 804 F. Supp. 83 (D. Haw. 1992)

Miller v. United States, 500 F.2d 1007 (2d Cir. 1974)

Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479 (1998)

Oil Chem. & Atomic Workers v. Skinner, 724 F. Supp. 1264 (N.D. Cal. 1989)

Paul v. INS, 348 F.3d 43 (2d Cir. 2003)

Presidential Gardens Assocs. v. United States, 175 F.3d 132 (2d Cir. 1999)

Rauenhosrt v. Commissioner, 119 T.C. 157 (2002)

Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009)

Schortmann v. United States, 82 Fed. Cl. 1 (2008)

Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (2013)

Sodexho Marriott Mgmt. v. United States, 61 Fed. Cl. 229 (2004)

Sw. Marine of San Francisco v. United States, 896 F.2d 532 (Fed. Cir. 1990)

Stockton E. Water Dist. v. United States, 62 Fed. Cl. 379 (2004)

Umpaqua Marine Ways v. United States, 925 F.2d 409 (Fed. Cir. 1991)

United States v. Brockamp, 519 U.S. 347 (1997)

United States v. CSX Corp., 1995 U.S. Dist. LEXIS 6593, 75 A.F.T.R.2d (RIA) 2434 (E.D. Va. May 8, 1995)

United States v. Dalm, 494 U.S. 596 (1990)

United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015)

Vehr v. United States, 117 Fed. Cl. 332 (2014)

Statutes

26 U.S.C. § 6511

26 U.S.C. § 6532

26 U.S.C. § 6532(a)(1)

26 U.S.C. § 6532(c)(1)

26 U.S.C. § 6611

26 U.S.C. § 6611(a)

26 U.S.C. § 6621

26 U.S.C. § 7422

26 U.S.C. § 7422(a)

28 U.S.C. § 610

28 U.S.C. § 1291

28 U.S.C. § 1346

28 U.S.C. § 1346(a)(1)

28 U.S.C. § 1491

28 U.S.C. § 1631

28 U.S.C. § 2401

28 U.S.C. § 2401(a)

28 U.S.C. § 2501

Other Authorities

C.C.A. 2005-32-001 (July 7, 2005)

F. Serv. Adv. 343 (Aug. 7, 1992)

Rev. Rul. 56-506, 1956-2 C.B. 959

Rev. Rul. 57-242, 1957-1 C.B. 452

1994 FSA LEXIS 817 (Sept. 21, 1994)

Treasury Regulations

Treas. Reg. § 601.601(d)(2)(i)(a)

Treas. Reg. § 601.601(d)(2)(v)(e)

---

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pfizer Inc. is a publicly traded company and no shareholder owns more than 10% of its outstanding stock.

STATEMENT IN SUPPORT OF ORAL ARGUMENT

Counsel for Appellant, Pfizer Inc. and Subsidiaries (“Pfizer”), respectfully inform the Court that they believe that oral argument would assist the Court in its disposition of this appeal, given the District Court's unprecedented application of the Internal Revenue Code provisions governing the statute of limitations (26 U.S.C. § 6532) for tax refunds (26 U.S.C. § 7422) to Pfizer's overpayment interest suit (26 U.S.C. § 6611) brought under 28 U.S.C. § 1346(a)(1).

BRIEF FOR APPELLANT

JURISDICTIONAL STATEMENT

On March 11, 2016, Pfizer filed the instant suit under 26 U.S.C. § 6611¹ seeking recovery of interest due to Pfizer of $8,298,048. (Dkt. No. 1). On July 15, 2016, the United States of America (the “Government”) moved to dismiss or transfer this action, arguing that a suit for overpayment interest did not fall within the subject matter jurisdiction of the Southern District of New York (the “District Court”) under 28 U.S.C. § 1346(a)(1). (Dkt. No. 28 at 1-2). On October 31, 2016, the District Court denied the Government's motion, ruling that Pfizer's action seeking interest on a tax overpayment is a suit under 28 U.S.C. § 1346(a)(1) for the “recovery” of a “sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” (Dkt. No. 33 at 3-4). On December 23, 2016, the Government again moved to dismiss this action, arguing that because certain language in 28 U.S.C. § 1346 (titled “United States as defendant”) is the same as certain language in Section 7422 (titled “Civil actions for refund”), Pfizer's action falls within the scope of Section 7422(a) and is therefore subject to the two-year statute of limitations applicable to tax refund actions under Section 6532(a) (titled “Suits by taxpayers for refund”) and not the six-year statute of limitations under 28 U.S.C. § 2401. (Dkt. No. 41). On May 12, 2017, the District Court granted the Government's motion to dismiss. (Dkt. No. 55). On May 26, 2017, Pfizer filed a motion for reconsideration of the District Court's May 12, 2017, Order. (Dkt. No. 56). On June 30, 2017, the District Court denied Pfizer's motion for reconsideration. (Dkt. No. 62).

Pfizer filed a notice of appeal from the decision on July 25, 2017, which was timely under this Court's Rule 4(a)(1)(B)(i) of the Federal Rules of Appellate Procedure. (Dkt. No. 63). This Court has jurisdiction to entertain the appeal because Pfizer's appeal is of a final decision for the United States by the District Court. 28 U.S.C. § 1291.

STATEMENT OF ISSUE

Is an action in the District Court seeking overpayment interest owed by the Government to the taxpayer under Section 6611, which is not a tax refund suit, subject to the general six-year statute of limitations under 28 U.S.C. § 2401 and not the two-year statute of limitations applicable only to tax refund suits under Section 6532?

STATEMENT OF THE CASE

In this case, Pfizer brings an action against the Government to recover interest due for Pfizer's taxable year ended December 31, 2008, which the Government, through its agency, the Internal Revenue Service (the “Service”), has wrongly refused to pay to Pfizer. Specifically, Pfizer's 2008 federal income tax return listed an overpayment of $769,665,651 and requested that $500 million of that overpayment be refunded to it, with the remainder applied to its 2009 estimated tax. The Government failed to provide Pfizer its refund for over six months after Pfizer's timely request. As a result of the delayed payment, Pfizer is entitled to $8,298,048 in interest from the Government under Section 6611.

In granting the Government's motion to dismiss, the District Court erred because it mistook situations where the taxpayer overpays its taxes and the government owes the taxpayer interest as a result (i.e., Pfizer's case) for situations where a taxpayer seeks to recover amounts that the taxpayer previously paid to the government (i.e., refund suits). A different statute of limitations governs each situation. A six-year statute of limitations governs Pfizer's case while a two-year statute of limitations governs refund suits. Based on this mistake of law, the District Court held that Pfizer's claim for overpayment interest is governed by the statute of limitations under Section 6532, a statute that is applicable only to refund suits. As a result, the District Court held that Pfizer's suit was untimely because it was not filed within two years of denial of Pfizer's administrative claim.

As this Court and the Service have both acknowledged, the six-year statute of limitations applies to overpayment interest suits. See Exxon Mobil Corp. v. Commissioner, 689 F.3d 191, 197-99 n.9 (2d Cir. 2012) (citing Rev. Rul. 56-506, 1956-2 C.B. 959 for the six-year statute of 28 U.S.C. § 2401 and § 2501 to overpayment interest); Rev. Rul. 56-506, 1956-2 C.B. 959 (“Under the provisions of sections 2401 and 2501 of Title 28 of the United States Code no allowance of interest on a refund or credit of an overpayment of tax may be made after the expiration of six years from the date of the allowance of the refund or credit unless the taxpayer has filed a civil action against the United States within such period.”). The fact that subject matter jurisdiction exists under 28 U.S.C. § 1346(a)(1) does not change this rule. Therefore, the general six-year statute of limitations under 28 U.S.C. § 2401(a)² applies to this case, and Pfizer timely filed this cause of action.

STATEMENT OF FACTS

The following facts are taken from Pfizer's complaint. “On appeal of the district court's order on the motion to dismiss, we must accept as true all material factual allegations in the complaint, but we are not to draw inferences from the complaint favorable to plaintiffs. We may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but we may not rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citations omitted).

Pfizer is a corporation with its principal place of business at 235 E. 42nd Street, New York, New York 10017. (See Dkt. No. 1, ¶ 1). Pfizer's tax return for the year ended December 31, 2008, was due on March 15, 2009. (Id. ¶ 5). On March 3, 2009, Pfizer filed a Form 7004 (Application for Automatic Extension of Time to File Corporation Income Tax Return) for its tax year ended December 31, 2008, and extended the due date of its return until September 15, 2009. (Id.). On September 11, 2009, Pfizer filed its 2008 federal income tax return. (Id. ¶ 6). The 2008 Pfizer tax return listed an overpayment of tax of $769,665,651. (Id.). Pfizer requested that $500 million of the overpayment be refunded and that the balance of $269,665,651 be applied to its 2009 estimated tax. (Id. ¶ 8). When the Service processed the return, refunds totaling $499,528,449 (five checks of $99,000,000.00 and one check of $4,528,449.05) were scheduled for October 19, 2009. (Id. ¶ 9). Pfizer made numerous inquiries of the Service about the status of the refund between December 2009 and February 2010. (Id. ¶¶ 13-16). The Service confirmed that the checks were not sent, (id. ¶ 17), and cancelled the refund checks. (Id. ¶ 18). Pfizer finally received a refund totaling $499,528,449 by electronic funds transfer on March 19, 2010. (Id. ¶ 20).

Pfizer is entitled to interest on its overpayment of tax for the taxable year ended 2008 in the amount of $8,298,048 under Section 6611(a). (Id. ¶¶ 25-29). The District Court has jurisdiction over this action pursuant to 28 U.S.C. § 1346(a)(1). (Id. ¶ 3). This action is timely under 28 U.S.C. § 2401(a) (Id. ¶ 30) as Pfizer filed its complaint in the District Court on March 11, 2016, which is within six years of the date of the overpayment.

Nature of the Dispute and the District Court's Opinion

The nature of this dispute is simple. Pfizer timely filed a tax return on which it overpaid its taxes, the Government did not timely pay Pfizer the refund of the overpayment, and the Government owes Pfizer interest on this overpayment, which the Government refuses to pay. Consequently, on March 11, 2016, Pfizer filed the instant suit under Section 6611 seeking recovery of interest due to Pfizer of $8,298,048. (Dkt. No. 1). On July 15, 2016, the Government moved to dismiss or transfer this action. The Government argued that Pfizer's suit did not fall within the District Court's subject matter jurisdiction under 28 U.S.C. § 1346(a)(1) and that jurisdiction only exists in the Court of Federal Claims under 28 U.S.C. § 1491. (Dkt. No. 28 at 1-2).

Pfizer argued that 28 U.S.C. § 1346(a)(1) encompassed Pfizer's claim because interest on a tax overpayment is “any sum alleged to have been excessive . . . under the internal-revenue laws” and is an “internal-revenue tax alleged to have been erroneously or illegally assessed or collected.” Pfizer also argued that the Government's argument that the District Court lacked jurisdiction has been rejected by the other appellate and district courts that have considered it.

On October 31, 2016, the District Court denied the Government's motion, ruling that Pfizer's action seeking interest on a tax overpayment is a suit under 28 U.S.C.§ 1346(a)(1) for the “recovery” of a “sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” (Dkt. No. 33 at 3-4). Specifically, the District Court stated:

Plaintiff seeks to recover over $8 million in overpayment interest, which is “a sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” E.W. Scripps & Co. v. United States, 420 F.3d 589, 597 (6th Cir. 2005) (finding subject matter jurisdiction under § 1346(a)(1) because “any sum” includes overpayment interest). As the Supreme Court in Flora stated, “One obvious example of such a 'sum' is interest.” Id.

(Dkt. No. 33 at 3-4.) The District Court concluded “[t]he weight of authority supports the conclusion that § 1346(a)(1) grants district courts subject matter jurisdiction over actions seeking overpayment interest[,]” and included a lengthy footnote citing a number of cases. (Id. at 5) (footnote omitted).

On December 23, 2016, the Government again moved to dismiss this action, arguing that because certain language in 28 U.S.C. § 1346(a)(1) is the same as certain language in Section 7422(a), Pfizer's action falls within the scope of Section 7422(a) and is therefore subject to the two-year statute of limitations applicable to tax refund actions under Section 6532(a)(1). (Dkt. No. 41). Section 7422 states:

Civil actions for refund.

(a) No suit prior to filing claim for refund.

No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

Section 6532 states:

(a) Suits by taxpayers for refund.

(1) General rule. No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.

Pfizer argued that Sections 7422 and 6532 do not apply because the instant action is not a refund “suit or proceeding under section 7422(a),” but rather is a suit for interest authorized under Section 6611, which provides both the right to the interest sought here and the waiver of sovereign immunity. (Dkt. No. 42). On May 12, 2017, the District Court granted the Government's motion to dismiss. (Dkt. No. 55). On May 26, 2017, Pfizer filed a motion for reconsideration of the District Court's May 12, 2017, Order. (Dkt. No. 56). On June 30, 2017, the District Court denied Pfizer's motion for reconsideration. (Dkt. No. 62).

Pfizer filed a notice of appeal from the decision on July 25, 2017, which was timely under this Court's Rule 4(a)(1)(B)(i) of the Federal Rules of Appellate Procedure. (Dkt. No. 63). This Court has jurisdiction to entertain the appeal because Pfizer's appeal is of a final decision for the United States by the District Court. 28 U.S.C. § 1291.

Summary of Argument

“In any suit in which the United States is a defendant, there must be a cause of action, subject matter jurisdiction, and a waiver of sovereign immunity.” Presidential Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir. 1999).

For Pfizer's cause of action, there is subject matter jurisdiction under 28 U.S.C. § 1346(a)(1) and a waiver of sovereign immunity under Section 6611. See Exxon Mobile Corp., 689 F.3d at 202 (“Congress waived immunity with respect to claims for interest in section 6611(a) . . .”); See also Presidential Gardens Assocs., 175 F.3d at 139, Ford Motor Co v. United States, 768 F.3d 580, 584-86 (6th Cir. 2014) and E.W. Scripps Co. v. United States, 420 F.3d 589, 597 (6th Cir. 2005) (applying the proper two-step analysis under Library of Congress v. Shaw, 478 U.S. 310, 318 (1986) to a district court overpayment interest action).

Pfizer's cause of action for Section 6611 overpayment interest is not governed by any statute of limitations in the Code, but it is instead governed by the general six-year statute of limitations under 28 U.S.C. § 2401 for claims against the Government. As the Federal Circuit stated: “interest on an overpayment is simply a general debt of the government, which is not subject to the special rules associated with the adjustment and collection of obligations under the tax laws.” GE v. United States, 384 F.3d 1307, 1312 (Fed. Cir. 2004). Because overpayment interest is “simply a general debt of the government,” and not a refund of taxes previously paid, “the general six year statute that applies to suits against the government[.]” Id. No provision of the Internal Revenue Code contains the statute of limitations for a Section 6611 overpayment interest cause of action.

In Lyons v. United States, 1992 U.S. Dist. LEXIS 19618, at *4, 71 A.F.T.R.2d (RIA) 551 (S.D. Iowa Nov. 10, 1992), the Southern District of Iowa considered precisely the same issue faced here, which is whether a suit for statutory interest payable by the government on an overpayment under Section 6611 with subject matter jurisdiction under 28 U.S.C. § 1346(a)(1) is subject to the refund provisions of Sections 6511³ and 7422. The Lyons court stated:

The Internal Revenue Code establishes two distinct procedures, and two distinct statutes of limitations for claims for interest. First, a suit for a refund of interest previously paid by the taxpayer on demand of the IRS is subject to the administrative claim refund mechanism and statute of limitations of 26 U.S.C. § 6511 and 7422. Second, a suit for statutory interest payable by the government on overpayment pursuant to § 6611 is not subject to an administrative claim for refund.

Alexander Proudfoot Co. v. United States, 454 F.2d 1379, 1384 (Ct. Cl. 1972). Moreover, in a suit for interest owed under § 6611 the ordinary six-year limitations statute controls and no claim need be filed within the time limits of § 6511.

Id. at *5-6 (emphasis in original). Thus, in Lyons, the District Court rightly concluded that statutes related specifically to refund suits have no bearing on the general six-year limitations statute that applies to claims for overpayment interest. See also Alexander Proudfoot Co. v. United States, 454 F.2d 1379, 1384 (Ct. Cl. 1972) (“Nor does the Code extend the refund claim mechanism of § 6511 to such interest, or tie a special limitations period to the filing of such a claim. The result is that the ordinary six-year limitations statute controls . . .”).

Here, the District Court agreed with Pfizer that it has jurisdiction under 28 U.S.C. § 1346(a)(1) and that Section 6611 was a waiver of sovereign immunity, but the District Court failed to apply the six-year statute of limitations to Pfizer's case. Instead, the District Court incorrectly applied the two-year statute of limitations under Section 6532 to Pfizer's case by requiring Pfizer to meet an additional waiver of sovereign immunity under Section 7422 that is only applicable to refund suits. This decision ignores GE, Alexander Proudfoot, Lyons, and Revenue Rulings 57-242, 1957-1 C.B. 452 and 56-506, 1956-2 C.B. 959, all of which make clear that a claim for interest under Section 6611 is not subject to the administrative refund requirements of the Internal Revenue Code. The District Court instead erroneously relied on the Supreme Court's decision in United States v. Dalm, 494 U.S. 596, 601 (1990) to support its holding. In so doing, the District Court failed to recognize that Dalm is limited to refund claims and has no bearing on non-refund claims, such as Pfizer's claim for overpayment interest.

Sections 7422 and 6532 are refund statutes that apply to refund suits, such as the one in Dalm, but that is not Pfizer's case. Recognizing that Dalm did not legislate that the same statute of limitations applies to all tax disputes, subsequent Circuit Courts of Appeal have held that the six-year statute of limitations applies to overpayment interest suits without even citing to Dalm. See Exxon Mobil Corp., 689 F.3d at 197-99 n.9; GE, 384 F.3d at 1312. Dalm is plainly not applicable to non-refund claims.

As a result, the District Court erred as a matter of law. This Court should reverse and remand Pfizer's case to the District Court.

ARGUMENT

Pfizer's Section 6611 overpayment interest suit is subject to the six-year statute of limitations under 28 U.S.C. § 2401 and is not subject to the two-year statute of limitations under Section 6532 because it is not a refund suit.

Standard of Review

The District Court's determination of whether subject matter jurisdiction exists was a conclusion of law. The standard of review for determinations regarding the legal conclusions as to whether subject matter jurisdiction exists is de novo. See Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 701 (2d Cir. 2000) (“The standard of review for determinations regarding subject matter jurisdiction is clear error for factual findings, and de novo for the legal conclusion as to whether subject matter jurisdiction exists. See Filetech, S.A. v. France Telecom, S.A., 157 F.3d 922, 930 (2d Cir. 1998)”).

I. Congress waived sovereign immunity regarding claims for overpayment interest because 28 U.S.C. § 1346(a)(1) provides the jurisdictional waiver and Section 6611 provides the substantive waiver.

“In any suit in which the United States is a defendant, there must be a cause of action, subject matter jurisdiction, and a waiver of sovereign immunity.” Presidential Gardens Assocs., 175 F.3d at 139. “In the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award.” Shaw, 478 U.S. at 314. “Shaw . . . appears to require two waivers of sovereign immunity in the context of a suit against the government to obtain interest — one jurisdictional waiver establishing the right to bring suit in an appropriate court, and a second substantive waiver expressly authorizing an award of interest.” Ford Motor Co., 768 F.3d at 586. Both Ford Motor Co. and E.W. Scripps Co., 420 F.3d at 597, applied the proper two-step Shaw sovereign immunity analysis to a district court overpayment interest action in holding that 28 U.S.C. § 1346(a)(1) is the jurisdictional waiver, and Section 6611 is the substantive waiver. Ford Motor Co., 768 F.3d at 584. Section 7422 is inapplicable to the sovereign immunity analysis when the suit does not relate to a refund.

Pfizer's cause of action for Section 6611 overpayment interest is a “sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” Therefore, Pfizer has met step one of the two-step Shaw sovereign immunity analysis. The District Court previously and properly agreed with this conclusion by holding that 28 U.S.C. § 1346(a)(1) is the jurisdictional waiver in this case. (Dkt. No. 33 at 6). Second, as the District Court's Order dated May 12, 2017, recognizes, and as the Second Circuit has previously recognized, Section 6611 is the substantive waiver expressly authorizing an award of interest. (Dkt. No. 55 at 5) (“Section 6611, which allows for interest to be paid on overpayments of tax, may be one relevant waiver of sovereign immunity here, but it is not the only one.”). See also Exxon, 689 F.3d at 202 (citing Int'l Bus. Mach. Corp. v. United States, 201 F.3d 1367, 1371, 1374 (Fed. Cir. 2000) (Congress waived immunity with respect to claims for interest in section 6611(a), which provides that “[i]nterest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at the overpayment rate established under section 6621.” (emphasis in original))⁴; cf. Doolin v. United States, 918 F.2d 15, 18 (2d Cir. 1990) (noting Government's argument that “section 6611 must be strictly construed since it is a waiver of sovereign immunity”)).⁵ In Schortmann v. United States, 82 Fed. Cl. 1, 6 (2008), the Court of Federal Claims explained Section 6611(a) as follows:

Id. at 6 (emphasis added). In addition, other appellate courts also have held that Congress expressly waived sovereign immunity regarding overpayment interest claims under Section 6611(a). See, e.g., Ford Motor Co., 768 F.3d at 584 (“26 U.S.C. § 6611, which specifically permits taxpayers to sue the government for overpayment interest, constitutes an express congressional waiver of the government's immunity from suits to recover interest. E.W. Scripps. Co. v. United States, 420 F.3d 589, 597 (6th Cir. 2005).”); Marsh & McLennan Cos., Inc. v. United States, 50 Fed. Cl. 140, 146 (2001), aff'd, 302 F.3d 1369 (Fed. Cir. 2002), cert. denied, 538 U.S. 925 (2003) (holding Section 6611 is a waiver of sovereign immunity). Thus, Pfizer has met step-two of the Shaw sovereign immunity analysis.

Pfizer has met, and is only required to meet, the two-step Shaw sovereign immunity analysis. Therefore, this Court should hold that the Government waived sovereign immunity with respect to claims for overpayment interest because 28 U.S.C. § 1346(a)(1) provides the jurisdictional waiver, as the District Court previously held, and Section 6611 provides the substantive waiver, as the District Court and Second Circuit have previously recognized.

II. When the Government owes a taxpayer interest because a taxpayer overpaid its taxes, the general six-year statute of limitations under 28 U.S.C. § 2401(a) governs.

Pfizer's action for overpayment interest under Section 6611 is due to the delay in receiving its tax refund for its 2008 year. The District Court's earlier holding that Pfizer's Section 6611 overpayment interest suit was properly brought under 28 U.S.C. § 1346(a)(1) does not affect the long-held precedent throughout the federal courts that Section 6611 overpayment interest suits are subject to the general six-year statute of limitations set forth in 28 U.S.C. § 2401(a). No provision of the Internal Revenue Code provides a statute of limitations on the taxpayer's ability to file a cause of action under Section 6611; thus, to hold that a Section 6611 overpayment interest suit is subject to a statute of limitations other than the general six-year statute of limitations of 28 U.S.C. § 2401(a) would upset years of precedent that taxpayers have relied upon in seeking Section 6611 overpayment interest from the Service. The Service's administrative guidance clearly states that administrative refund provisions do not apply to Section 6611 overpayment interest.

The District Court erroneously relied on language in two Supreme Court cases that do not address Section 6611 overpayment interest causes of action. In Dalm, the Supreme Court analyzed a refund case and held that taxpayers must comply with the sovereign immunity waiver requirements of Section 7422 for refunds of taxes previously paid. Dalm, 494 U.S. at 601. In EC Term of Years Tr., the Supreme Court addressed the statute of limitations for a wrongful levy action. EC Term of Years Tr. v. United States, 550 U.S. 429, 434 (2007). Neither case addressed Pfizer's cause of action, which is a claim for Section 6611 overpayment interest.

A. This Court should hold that Pfizer's cause of action is subject to the general six-year statute of limitations against the Government and not a refund suit subject to the administrative refund provisions of the Internal Revenue Code.

This Court previously recognized this long-held rule in Exxon, 689 F.3d at 197-99 n.9. In Exxon, this Court stated that the period of limitations for an allowable interest claim under Section 6611(a) is six years:

Id. Both the taxpayer and the Service in Exxon agreed, and even stipulated, that the six-year statute of limitations under 28 U.S.C. § 2401(a) applied to the taxpayer's Section 6611(a) overpayment interest. Id.

In addition to the Second Circuit, several other courts have addressed the jurisdictional administrative exhaustion requirements and time limitations for allowable interest suits under Section 6611(a). For example, as discussed above, in Lyons, 1992 U.S. Dist. LEXIS 19618, at *5-6, 71 A.F.T.R.2d (RIA) 551, the Southern District of Iowa considered the exact same issue as is at issue in Pfizer's case and held that:

Id. (emphasis in original). The Federal Circuit relied upon Lyons for the proposition that suits for statutory interest payable by the government on an overpayment under Section 6611 are subject to the general six-year statute of limitations. GE, 384 F.3d at 1312. The Federal Circuit in GE stated:

Similarly, the statute of limitations for collecting interest on an overpayment is not the three-year limitations period applicable to recovery of the overpayment itself, 26 U.S.C. § 6511, but the general six-year statute that applies to suits against the government, 28 U.S.C. § 2501. The principle underlying that distinction is that an overpayment is a payment that relates to a tax obligation, while interest on an overpayment is simply a general debt of the government, which is not subject to the special rules associated with the adjustment and collection of obligations under the tax laws. See Proudfoot, 454 F.2d at 1384; United States v. CSX Corp., 1995 U.S. Dist. LEXIS 6593, 95-1 U.S.T.C. P 50,291 (E.D. Va. 1995); Lyons v. United States, 1992 U.S. Dist. LEXIS 19618, 93-1 U.S.T.C. P 50,026 (S.D. Iowa 1992); Rev. Rul. 57-242, 1957-1 C.B. 452; Rev. Rul. 56-506, 1956-2 C.B. 959.

Id. (emphasis added); see also United States v. CSX Corp., 1995 U.S. Dist. LEXIS 6593, at *12, 75 A.F.T.R.2d (RIA) 2434 (E.D. Va. May 8, 1995) (“Refunds of such monies [overpayment interest] are governed by a six-year statute of limitations which has yet to run. See 28 U.S.C. § 2401, 2501; see also Rev. Rul. 57-242, 1957-1 C.B. 452; Rev. Rul. 56-506, 1956-2 C.B. 959.”). The Court of Claims, in Alexander Proudfoot, explained the difference between claims for refund of taxes and deficiency interest previously paid versus payments of overpayment interest under Section 6611:

Alexander Proudfoot Co., 454 F.2d at 1384 (footnote omitted). Thus, numerous courts, including the Second Circuit, have recognized the significance of the distinction between a refund suit and a claim for overpayment interest. These courts have uniformly held that the general six-year statute of limitations applies to claims for overpayment interest.

B. The Service's official pronouncements provide that a Section 6611(a) overpayment interest suit is subject to the general six-year statute of limitations under 28 U.S.C. § 2401.

The Service's official pronouncements agree that a Section 6611(a) overpayment interest suit is subject to the general six-year statute of limitations set forth in 28 U.S.C. § 2401. In Rev. Rul. 57-242, 1957-1 C.B. 452, the Service ruled that the six-year statute applied to overpayment interest.⁶ The Ruling stated:

Since a statutory period of limitations for the allowance and payment of interest on an overpayment is not provided for in the Internal Revenue Code of 1954 (nor in the 1939 Code), it is necessary to look to sections 2401 and 2501 of Title 28 of the United States Code, which provides a six-year period in which suit must be filed.

(Emphasis added). Similarly, Rev. Rul. 56-506, 1956-2 C.B. 959 stated:

Under the provisions of sections 2401 and 2501 of Title 28 of the United States Code no allowance of interest on a refund or credit of an overpayment of tax may be made after the expiration of six years from the date of the allowance of the refund or credit unless the taxpayer has filed a civil action against the United States within such period.

Colgate-Palmolive-Peet Co. v. United States, 58 F.2d 499, 503 (Ct. Cl. 1932); Barnes v. United States, 137 F. Supp. 716, 718 (Ct. Cl. 1956), cert. denied, 351 U.S. 933 (1956).

Revenue Rulings are precedent on which taxpayers may rely because “[a] Revenue Ruling is an official interpretation by the Service that has been published in the Internal Revenue Bulletin.”Treas. Reg. § 601.601(d)(2)(i)(a). “Taxpayers generally may rely upon Revenue Rulings published in the Bulletin in determining the tax treatment of their own transactions and need not request specific rulings applying the principles of a published Revenue Ruling to the facts of their particular cases.” Treas. Reg. § 601.601(d)(2)(v)(e).⁷

The Service's administrative guidance does not distinguish between Section 6611(a) overpayment interest suits brought in district courts pursuant to 28 U.S.C. § 1346(a)(1) and the Court of Federal Claims pursuant to 28 U.S.C. § 1491.⁸ Several courts, in addition to this Court, have relied on the Service's administrative guidance to hold that a Section 6611(a) overpayment interest suit is subject to the general six-year statute of limitations set forth in 28 U.S.C. § 2401. See, e.g., Exxon, 689 F.3d at 197-99 n.9 (citing Rev. Rul. 56-506, 1956-2 C.B. 959); GE, 384 F.3d at 1312 (citing Rev. Rul. 57-242, 1957-1 C.B. 452, and Rev. Rul. 56-506, 1956-2 C.B. 959); Lyons, 1992 U.S. Dist. LEXIS 19618, at *5-6 n. 3 (citing Rev. Rul. 57-242, 1957-1 C.B. 452); CSX Corp., 1995 U.S. Dist. LEXIS 6593, at *12, 75 A.F.T.R.2d (RIA) 2434 (citing Rev. Rul. 57-242, 1957-1 C.B. 452, and Rev. Rul. 56-506, 1956-2 C.B. 959).

In Revenue Ruling 57-242, the Service advised the public that the filing of a claim for refund for Section 6611 overpayment interest does not affect the statute of limitations for such overpayment interest under 28 U.S.C. §§ 2401, 2501. The District Court's May 12, 2017, Order does the exact opposite of what the Service's Rev. Rul. 57-242 advises. Because the Internal Revenue Code does not provide a statutory period of limitations for Section 6611 overpayment interest suits, the District Court erroneously looked to an Internal Revenue Code provision (Section 7422(a)) that was similar to 28 U.S.C. § 1346(a)(1) to hold that Pfizer was subject to a statutory period of limitations (Section 6532(a)(1)) in the Internal Revenue Code. Causes for action for overpayment interest under Section 6611 are not subject to the additional requirements of Section 7422 and Section 6532.

C. The Supreme Court cases of Dalm and EC Term of Years do not apply to Section 6611 overpayment interest.

The District Court cited to Dalm, 494 U.S. at 601 to support its holding that 28 U.S.C. § 1346(a)(1) must be read in conjunction with Section 7422. Specifically, the District Court stated:

“Despite its spacious terms, § 1346(a)(1) must be read in conformity with other statutory provisions which qualify a taxpayer's right to bring a refund suit upon compliance with certain conditions. The first is [26 U.S.C.] § 7422(a) . . . .” United States v. Dalm, 494 U.S. 596, 601 (1990).

(Dkt. No. 55 at 3-4). In reaching this conclusion, the District Court failed to appreciate the distinction between a case seeking a refund of tax previously paid to the government and a case seeking interest payable by the government on a tax overpayment. Pfizer's case is not a claim for a refund of amounts previously paid by Pfizer on demand of the Service. Rather, Pfizer's case is a suit for statutory interest payable by the government on an overpayment pursuant to Section 6611, which is not subject to an administrative claim for refund or the statute of limitations for administrative claims for refund.See, e.g., GE, 384 F.3d at 1312; Lyons, 1992 U.S. Dist. LEXIS 19618, at *5-7, 71 A.F.T.R.2d (RIA) 551; Alexander Proudfoot, 454 F.2d at 1384; C.C.A. 2005-32-001 (July 7, 2005); 1994 FSA LEXIS 817 (Sept. 21, 1994).

In Dalm, the Supreme Court recited the facts of the case as follows:

494 U.S. at 598-600 (footnotes omitted). The Supreme Court held that the taxpayer's refund suit was untimely because it did not meet the requirements of Section 6511 and 7422 (i.e., the administrative exhaustion requirements and statute of limitations for refund claims for taxes already paid). Id. at 602.

If Pfizer's case were for a refund of taxes and interest Pfizer had already paid to the government, the administrative exhaustion requirements and statute of limitations for refund claims articulated in Dalm could apply. Pfizer's case, however, is factually distinguishable from Dalm because this case is for statutory interest payable by the government pursuant to Section 6611. The holding in Dalm therefore does not apply.

Fifteen years after Dalm was decided, the Sixth Circuit in E.W. Scripps recognized the distinction between a refund suit and a non-refund suit by holding that “although § 1346(a)(1) and § 7422(a) use parallel language, the two provisions serve different functions and thus have their own independent meanings.” E.W. Scripps, 420 F.3d at 597-98 (emphasis added) (citing Horizon Coal Corp. v. United States, 43 F.3d 234, 239-40 (6th Cir. 1994)). In other words, 28 U.S.C. § 1346(a)(1) is a jurisdictional statute under Title 28 of the U.S. Code, and Section 7422 is a statute applicable to refund suits under Title 26 of the U.S. Code.

In this case, the District Court assumed that the two statutes must be read together without any consideration for the context of the two provisions. Where parallel language is found within the same statute, it ordinarily is accorded a consistent meaning. Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 501 (1998). That, however, is not the case here, where we have two statutes from different Titles that cover two types of matters. The Supreme Court has warned against the approach taken by the District Court, holding that courts “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009) (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008)); Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932); cited by this Court in Lotes Co. Ltd. v. Hon Hai Precision Indus. Co., Ltd., 753 F.3d 395, 410 (2d Cir. 2014).

Here, the District Court failed to take on the required inquiry. If it had, it would have discovered that Section 7422 is limited to refund suits for which taxpayers are required to file an administrative claim for refund before filing a cause of action whereas 28 U.S. C. § 1346(a)(1) has no such limitation. Claims for Section 6611 overpayment interest do not require a prior claim for refund. See Alexander Proudfoot, 454 F.2d at 1384. The jurisdictional statute, 28 U.S.C. § 1346(a)(1), does not include a prerequisite for a claim for refund and, thus, includes both suits under Section 7422, which require a prior claim, and Section 6611, which do not. The distinction between claims for refund of money previously paid subject to Section 7422 and claims for Section 6611 overpayment interest, which do not require prior claims, is logical in that claims for refund of a money a taxpayer had previously paid requires the Service to evaluate the merit of the claim for refund prior to paying the taxpayer's money back whereas the payment of Section 6611 overpayment interest is required by an operation of law when the Service owes a taxpayer payment of an overpayment of tax previously acknowledged by the Service as being due and owing. The Sixth Circuit recognized the differences between these two statutes in Scripps, and this Court should do the same here.

The Government's reliance on EC Term of Years, 550 U.S. at 431 n.2, is equally misplaced. (Dkt. No. 41 at 6). In that case, the taxpayer filed a wrongful levy action against the United States. EC Term of Years, 550 U.S. at 432. The Supreme Court held that the taxpayer's suit was untimely because it did not meet the statute of limitations set forth in Section 6532(c)(1), the nine-month statute of limitations for wrongful levy actions. Id. at 436. Pfizer's action is not a wrongful levy action.

Further, the District Court's citation to footnote 2 in EC Term of Years to support its order dismissing the case is not applicable to this case. (Dkt. No. 55 at 4). In footnote 2, the Supreme Court cited, in dicta, 28 U.S.C. § 1346(a)(1) for the jurisdictional grant to district courts for refund claims brought under the “any internal-revenue tax alleged to have been erroneously or illegally assessed or collected” provision of 28 U.S.C. § 1346(a)(1). EC Term of Years, 550 U.S. at 431 n.2. The District Court previously held in its October 31, 2016, Order that Pfizer's action seeking overpayment interest is a suit under the “any sum” provision of 28 U.S.C. § 1346(a)(1), a separate provision from the “any internal-revenue tax” provision of 28 U.S.C. § 1346(a)(1). It is therefore undisputed that Pfizer's suit is not a suit for an internal-revenue tax erroneously or illegally assessed or collected by the Service.

Dalm and EC Term of Years are inapplicable to Pfizer's case because they do not hold that claims for statutory interest payable by the government on an overpayment pursuant to Section 6611 are subject to Sections 7422(a) and 6532(a)(1). Simply put, Pfizer's case does not involve taxes paid (Dalm) and Pfizer's action is not a wrongful levy action (EC Term of Years).

III. In the alternative, if this Court holds that the two-year statute of limitations should apply, it should reverse and remand on principles of equity.

If this Court maintains that Pfizer's action is subject to Section 6532, the Government should be equitably estopped from asserting that Pfizer's action was time barred. Statutes of limitations are subject to an unstated rebuttable presumption of equitable tolling. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990) (cited by United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) and John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 137 (2008)). Equitable tolling allows a court to pause the running of a limitations statute when a party “has pursued his rights diligently but some extraordinary circumstance” prevents him from meeting a deadline. Kwai Fun Wong, 135 S. Ct. at 1630-31; Irwin, 498 U.S. at 95-96. A party may rebut the presumption in favor of equitable tolling by showing either (1) the time bar is jurisdictional, or (2) there is good reason to believe Congress did not want the equitable tolling doctrine to apply. Kwai Fun Wong, 135 S. Ct. at 1631; United States v. Brockamp, 519 U.S. 347, 350 (1997); see Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (2013).

As this Court has previously held, Section 6532 is a non-jurisdictional statute. See Miller v. United States, 500 F.2d 1007, 1008 (2d Cir. 1974). In Miller, the taxpayers signed a form waiving the right to receive a notification of tax refund claim disallowance. Under Section 6532(a)(3), that waiver commenced a two-year period to bring a refund suit. Id. Sometime later, the Service mistakenly issued a notification of claim disallowance, stating that it commenced a two-year period to bring a refund suit (i.e., the one under Section 6532(a)(1)). Id. at 1008-09. The taxpayer filed a suit that was timely under Section 6532(a)(1), but not timely under Section 6532(a)(3). Id. at 1009. This Court stated:

[G]iven that the relevant statute of limitations is by its very terms rather flexible, that there is no suggestion that anyone in the Service acted in collusion with the taxpayers to defraud the federal fisc, and that the taxpayers' reliance on the erroneously issued disallowance notice was not unreasonable, we conclude that the government is estopped from raising the earlier deadline as a bar to this action.

Id. at 1011. Thus, because Section 6532(a)(1) is not a jurisdictional statute, equitable tolling is appropriate unless there is good reason to believe that Congress did not want it to apply.

Here, there is no evidence that Congress opposed equitable tolling. Section 6532(a)(1) does not contain a clear statement that its time period is jurisdictional. Section 6532(a)(1) does not use the word “jurisdiction,” otherwise speak in jurisdictional terms, or constitute anything other than an exception-free deadline. Congress has done nothing special to tag Section 6532(a)(1) as jurisdictional. Moreover, Section 6532(a)(1) is placed in the Code's subchapter captioned “Periods of Limitation in Judicial Proceedings,” rather than 28 U.S.C. § 1346(a)(1)'s chapter captioned “District Courts; Jurisdiction,” which indicates that Congress did not consider its timing requirements jurisdictional.

In this case, equitable tolling is appropriate because Pfizer filed its suit within the six-year statute of limitations of 28 U.S.C. § 2401 in reliance on Rev. Rul. 57-242, 1957-1 C.B. 452, and Rev. Rul. 56-506, 1956-2 C.B. 959. In addition to the Service's official pronouncements, the Service's Office of Appeals, which is an independent organization within the Service, informed Pfizer in a letter dated August 4, 2014, that its case was under the six-year statute of limitations of 28 U.S.C. § 2401 and § 2501. (See Dkt. No. 57, Ex. B). The Appeals letter clearly contradicts the Government's position taken. Thus, under Miller and the facts particular to this case, the Government should be estopped from strictly enforcing the statute of limitations under Section 6532.

IV. If Pfizer lacks subject matter jurisdiction in the District Court, this Court should transfer Pfizer's action to the Court of Federal Claims under 28 U.S.C. § 1631.

The District Court previously held that Pfizer's Section 6611 overpayment interest suit was time barred under Section 6532(a)(1). (Dkt. No. 55 at 4). The District Court further held that the Section 6532(a)(1) time bar was a jurisdictional error, and thus granted the Government's subject matter jurisdiction motion to dismiss. (Id.). If a Section 6532(a)(1) time bar is a jurisdictional error, this Court should hold that the District Court should have transferred Pfizer's Section 6611 overpayment interest suit to the Court of Federal Claims pursuant to 28 U.S.C. § 1631 and 28 U.S.C. § 1491(a)(1) instead of dismissing the case. Paul v. INS, 348 F.3d 43 (2d Cir. 2003).⁹

28 U.S.C. § 1631 permits a civil action filed in a district court that is determined to be without jurisdiction over the action to be transferred to such other federal court in which the action could have been brought at the time it was filed. 28 U.S.C. § 1631 “is a remedial statute designed to eliminate any prejudice that results from filing in an improper forum.” Dalton v. Sw. Marine, 120 F.3d 1249, 1250 (Fed. Cir. 1997) (citing Rodriguez-Roman v. Immigration & Naturalization Serv., 98 F.3d 416, 422 (9th Cir. 1996)). Specifically, 28 U.S.C. § 1631 provides:

Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is notice for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.

Courts of appeals are permitted to transfer civil actions to district courts and vice versa.¹⁰ Both courts of appeal and district courts are defined in 28 U.S.C. § 610 as courts subject to the transfer provision. Specifically, 28 U.S.C. § 610 provides:

As used in this chapter, the word “courts” includes the court of appeals and district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, and the Court of International Trade.

In order for a court to transfer a case to another court, a party must establish the following three elements: (1) the transferor court lacks jurisdiction over the case; (2) “the transferee court would have possessed jurisdiction over the case at the time it was filed”; and (3) the transfer would be “in the interest of justice.” Ruiz v. Mukasey, 552 F.3d 269, 273 (2d Cir. 2009) (citing Paul, 348 F.3d at 46 (holding that transfer is mandatory when all conditions are met)).

A. The District Court (the transferor court) lacks jurisdiction.

The first element of 28 U.S.C. § 1631 is that the transferor court lacks jurisdiction over the case. Id. If the District Court's order is not reversed, Pfizer meets the first element of 28 U.S.C. § 1631. The District Court (the transferor court) determined that Pfizer lacked subject matter jurisdiction in its May 12, 2017 Order (Dkt. No. 55), and again in its June 30, 2017 Order (Dkt. No. 62). Therefore, if the District Court's order is not reversed, Pfizer meets the first element of 28 U.S.C. § 1631, because the District Court held it lacks jurisdiction over Pfizer's case.

B. The Court of Federal Claims (the transferee court) would have possessed jurisdiction over the case at the time it was filed in the District Court.

The second element of 28 U.S.C. § 1631 is that the transferee court would have possessed jurisdiction over the case at the time it was filed. Ruiz, 552 F.3d at 273. Pfizer meets the second element of 28 U.S.C. § 1631. To establish the second element, the party seeking transfer must “make a showing that there is probable jurisdiction in the” transferee court. Sodexho Marriott Mgmt. v. United States, 61 Fed. Cl. 229, 241 (Fed. Cl. 2004). Because no court may dictate the jurisdiction of another, the second element of 28 U.S.C. § 1631 requires the transferor court to predict whether the proposed transferee court (the Court of Federal Claims) would accept jurisdiction. Dugan v. United States, 227 Ct. Cl. 613, 616 (1981). The transferor court must inquire whether the party seeking transfer “has a reasonable chance of persuading the [transferee court] that it has jurisdiction.” Id.

The Court of Federal Claims has previously held that Section 6611 overpayment interest actions are subject to the general six-year statute of limitations set forth in 28 U.S.C. § 2501. See, e.g., Four Star Oil & Gas Co. v. United States, 49 Fed. Cl. 755, 760 (2001) (“Claims for unpaid overpayment interest under § 6611(a) are governed by the six-year limitations period of §§ 2401 and 2501, rather than the limitations period set out in 26 U.S.C. § 6511.”) (citations omitted); Alexander Proudfoot, 454 F.2d at 1384 (“Unlike deficiency interest paid by the taxpayer, Congress did not provide that statutory interest to be paid by the United States is to be fully assimilated in treatment to the principal amount of a tax. Nor does the Code extend the refund claim mechanism of § 6511 to such interest, or tie a special limitations period to the filing of such a claim. The result is that the ordinary six-year limitations statute controls (see Barnes v. United States, 137 F. Supp. 716, 718 (Ct. Cl. 1956), cert. denied, 351 U.S. 933 (1956); Colgate-Palmolive-Peet Co. v. United States, 58 F.2d 499, 503 (Ct. Cl. 1932)), and no claim need be filed within the time limits of § 6511.”).

Pfizer's action is deemed filed in the Court of Federal Claims on the date it was filed in the District Court (March 11, 2016). Stockton E. Water Dist. v. United States, 62 Fed. Cl. 379, 389 (2004) (“Despite requiring plaintiffs to establish jurisdiction in the Court of Federal Claims without regard to the transferor court's findings, section 1631 does have one binding effect on the jurisdiction of the Court of Federal Claims: 'The action shall proceed as if it had been filed in . . . [the transferee court] on the date upon which it was actually filed in . . . [the transferor court.]' 28 U.S.C. § 1631 (emphasis added). Thus, no question is present that the filing date, for purposes of the Tucker Act's six-year statute of limitations, is the date on which the action was filed in district court.”). Therefore, because Pfizer's Section 6611 overpayment interest suit is subject to the Court of Federal Claims' general six-year statute of limitations set forth in 28 U.S.C. § 2401, Pfizer's suit could have been brought in the Court of Federal Claims at the time it was filed.

C. Transferring Pfizer's case to the Court of Federal Claims would be in the interest of justice.

The third element of 28 U.S.C. § 1631 requires the moving party to show that “transfer would be in the interest of justice.” The transferor court must evaluate whether the “case has a potentially valid claim” and whether the claims “are nonfrivolous.” Vehr v. United States, 117 Fed. Cl. 332, 334 (2014).

“[N]onfrivolous” claims do not contain spurious and specious arguments that distort the record and the rule of law. Id.

Pfizer's claim is not frivolous because its claim for Section 6611 overpayment interest payable by the Government is supported at law. See Doolin, 918 F.2d at 18; Godfrey v. United States, 997 F.2d 335, 337 (7th Cir. 1993). Pfizer's claim was timely filed under 28 U.S.C. § 2401 in the District Court or under 28 U.S.C. § 2501 in the Court of Federal Claims.

CONCLUSION

The District Court's order dismissing the case should be reversed and the case remanded back to the District Court. The District Court erred in holding that Pfizer's Section 6611 overpayment interest suit falls within the jurisdictional administrative exhaustion requirements of Section 7422(a) and the two-year statute of limitations applicable to tax refund actions under Section 6532. Pfizer's Section 6611 overpayment interest suit is subject to the general six-year statute of limitations of 28 U.S.C. § 2401 because it is a suit for statutory interest payable by the government. In the alternative, if this Court holds Pfizer lacks subject matter jurisdiction in the District Court, this Court should transfer Pfizer's action to the Court of Federal Claims pursuant to 28 U.S.C. § 1631.

Respectfully submitted,

Robert S. Walton
Baker & McKenzie LLP
300 East Randolph Drive, Suite 5000
Chicago, IL 60601
(312) 861-2540

Russell R. Young
Baker & McKenzie LLP
300 East Randolph Drive, Suite 5000
Chicago, IL 60601
(312) 861-2612

Susan E. Ryba
Baker & McKenzie LLP
300 East Randolph Drive, Suite 5000
Chicago, IL 60601
(312) 861-8636

Date: October 12, 2017