[00:00:05] Speaker 03:
Our next case is George Brown and Ruth Hunt Brown, 2021-1721.

[00:00:17] Speaker 03:
Brown versus the United States.

[00:00:32] Speaker 03:
Good morning, Ms.

[00:00:33] Speaker 03:
Hunt.

[00:00:46] Speaker 00:
May it please the court, I represent the appellants George Brown and Ruth Hunt Brown.

[00:00:51] Speaker 00:
Now in support of our position that the lower court erred in their judgment, I will address the argument that section 7422A is not jurisdictional and that the signature requirement is in fact regulatory and subject to waiver.

[00:01:06] Speaker 00:
Now pertinent, this court determines the jurisdictional question first.

[00:01:12] Speaker 00:
So in Steele, a company versus a citizen for a better environment, the Supreme Court has urged that if courts are faced with a jurisdictional question, that that jurisdictional question is addressed first to avoid creating what's called a hypothetical jurisdiction to reach the merits of the case, since creating such hypothetical jurisdiction.

[00:01:33] Speaker 04:
Well, whether it's not jurisdictional,

[00:01:36] Speaker 04:
Doesn't Angeles say that if it's statutory, it can't be waived by the rector?

[00:01:43] Speaker 04:
Which is not, it seems to me, the same thing as whether it's jurisdictional.

[00:01:48] Speaker 00:
So on the lower court, the case was dismissed since the court found that the Angeles Milling Doctrine didn't apply.

[00:01:56] Speaker 00:
And therefore, 7422A was not waived.

[00:01:59] Speaker 04:
Is it possible to turn up the volume some more?

[00:02:07] Speaker 03:
It may be a question of speaking distinctly.

[00:02:13] Speaker 00:
No, the Supreme Court has held that the Supreme Court itself has given the word jurisdiction too many meanings.

[00:02:22] Speaker 04:
OK, but that wasn't the question.

[00:02:24] Speaker 04:
My question is, even if this is not jurisdictional, Angela Millings says that the IRS can't waive the requirement.

[00:02:34] Speaker 04:
That jurisdictional would mean that in litigation, the Justice Department couldn't waive the requirement.

[00:02:43] Speaker 04:
We don't need to get there, because it would seem to me that Angeles Millings says that the IRS, in the course of processing these things, can't waive the requirement.

[00:02:55] Speaker 04:
That seems to say that pretty explicitly, if it's statutory.

[00:03:00] Speaker 00:
And this does bring us to the second grounds why we seek reversal of the lower court's judgment.

[00:03:08] Speaker 00:
The lower court has held that the signature requirement was statutory and not regulatory.

[00:03:14] Speaker 00:
Therefore, the lower court has held that anglicism doesn't apply.

[00:03:20] Speaker 00:
Now, it's our position that the signature requirement is, in fact, regulatory.

[00:03:24] Speaker 00:
So there is no explicit language in the statute

[00:03:29] Speaker 00:
that state that a taxpayer must sign their own tax return.

[00:03:34] Speaker 00:
So in their argument, the government in the lower court has argued that combining code section creates this explicit requirement.

[00:03:47] Speaker 00:
But 6061 only states that tax return or individual tax return

[00:03:54] Speaker 00:
shall be signed in accordance with forms and regulations prescribed by the Secretary.

[00:04:00] Speaker 00:
Now, whether the signature requirement on appellant's tax return was a valid signature, that answer can be found in the regulation.

[00:04:10] Speaker 03:
Well, the statute says that the claim must be duly filed.

[00:04:18] Speaker 03:
What does duly filed mean?

[00:04:20] Speaker 03:
Is it your view that duly filed does not require the taxpayer?

[00:04:25] Speaker 00:
So duly filed return would be a return that is in accordance with all the statutes and regulations.

[00:04:33] Speaker 00:
Now under Angeles Milling, the commissioner can choose not to enforce its own regulation, thereby waive it.

[00:04:42] Speaker 00:
So the waiver would then render this return that may not

[00:04:48] Speaker 00:
be in accordance with all the regulations.

[00:04:50] Speaker 00:
So that return that has issues in its submission would then be rendered a duly filed return.

[00:04:56] Speaker 03:
But there was no waiver here, was there?

[00:04:59] Speaker 00:
So the lower court never addressed the argument whether the waiver was met, since the lower court has held that it was statutory.

[00:05:08] Speaker 00:
And under Angela Smilling, explicit statutory language,

[00:05:12] Speaker 00:
cannot be waived.

[00:05:14] Speaker 04:
What is the evidence to support a waiver?

[00:05:16] Speaker 04:
I mean, it has to be an awareness by the IRS of the defect, right?

[00:05:22] Speaker 04:
And what evidence is there in this record showing that the IRS was aware of the defect?

[00:05:28] Speaker 00:
So if you look at the tax return itself, you see that the languages, I'm sorry, the signatures of the tax preparer for both the taxpayer's files

[00:05:41] Speaker 00:
are identical.

[00:05:43] Speaker 00:
So that's the first instance where we can point to that.

[00:05:52] Speaker 02:
So you would have the IRS have to look at the different filings to see that this somewhat illegible handwriting was the same?

[00:06:02] Speaker 00:
So it was on different finals on the same tax return.

[00:06:05] Speaker 00:
But then the government, in the disallowance of claim, they did call it an informal claim.

[00:06:13] Speaker 04:
Well, no, they didn't say that.

[00:06:14] Speaker 04:
They said it's either a 1040X or an informal claim.

[00:06:19] Speaker 00:
So I'm referring to, I just want to pull up the, on appendix page 98,

[00:06:33] Speaker 04:
Yeah, there at the top it says you filed a Form 1040X or an informal claim.

[00:06:38] Speaker 04:
It doesn't say that this is an informal claim.

[00:06:42] Speaker 00:
Correct.

[00:06:42] Speaker 00:
So I do just want to stress that we've never gotten to the issue whether the waiver would apply.

[00:06:46] Speaker 00:
And that is where we would like the case to be remanded.

[00:06:48] Speaker 04:
But what's the... Am I not correct that this doesn't say it's an informal claim?

[00:06:53] Speaker 04:
It says it's a Form 1040X or an informal claim.

[00:06:58] Speaker 00:
Yes.

[00:06:59] Speaker 00:
It does say that it's a 1040X or informal claim.

[00:07:03] Speaker 00:
But again, just looking at the tax return, the signatures on both lines on the 1040X are identical.

[00:07:12] Speaker 00:
So the spouses and the taxpayer signature.

[00:07:15] Speaker 02:
What page was that?

[00:07:18] Speaker 02:
Is it 244?

[00:07:22] Speaker 00:
Correct, yes.

[00:07:30] Speaker 02:
What about the government points out in their brief that there is a statutory provision or regulation where the IRS is to presume that the signatures are valid?

[00:07:43] Speaker 00:
Correct.

[00:07:43] Speaker 00:
And presumptions can be overcome.

[00:07:45] Speaker 00:
And it's our position that just looking at these signatures, seeing that these are identical, there's at least a presumption that one of these signatures are not valid, since it's not

[00:07:57] Speaker 00:
normal that a spouse and or two spouses would have an identical signature.

[00:08:06] Speaker 00:
Now so as I mentioned we've never in the law court we've never reached a signature waiver and we just really do want to stress the argument that nowhere in the statutory code does it say that a tax return has to be signed.

[00:08:21] Speaker 00:
Now here, a regulation was violated.

[00:08:25] Speaker 04:
In terms of the awareness standard, does that really mean that you go through and find evidence that might put someone on notice that there's a problem here, or does the waiver require that there be some explicit indication of knowledge of the defect?

[00:08:47] Speaker 00:
So the waiver does require to be explicit and here in this case the government wasn't required to look at outside evidence to determine that these signatures.

[00:08:55] Speaker 04:
What case says that?

[00:08:57] Speaker 04:
What case suggests that you can have a waiver when there's no explicit awareness of the defect but maybe if they hunted for the truffles through the record they'd be able to determine there was a problem?

[00:09:14] Speaker 00:
So the cases, all the cases on or interpreting the angular smilling doctrine do state that it needs to be explicit.

[00:09:20] Speaker 00:
So the commission needs to be aware that there is an issue.

[00:09:24] Speaker 00:
And this is where our argument comes in.

[00:09:26] Speaker 00:
By just looking at the tax return, the IRS was aware that there was an issue with the signature.

[00:09:31] Speaker 04:
But I guess what I'm saying, what case suggests that a circumstance like that translates into explicit awareness.

[00:09:40] Speaker 00:
So there's no, a lot of the English Milling cases focus on specificity.

[00:09:47] Speaker 00:
So we don't see a lot of cases focusing on the signature issue.

[00:09:50] Speaker 00:
So there's no case that I can point a court to at this moment.

[00:09:55] Speaker 02:
What about a case with just analogous facts, where involving some sort of alleged waiver by the IRS of some other requirement?

[00:10:06] Speaker 00:
Sure.

[00:10:08] Speaker 00:
And so there's one case where the... So, I mean, Angeles Milling itself is one of the cases where it was clear to the IRS that the specificity requirement wasn't met.

[00:10:26] Speaker 00:
In that case, there were previous two tax returns, and then Angeles Milling didn't include all the information.

[00:10:32] Speaker 00:
So most of the cases focused on the specificity requirement, which tends to be more clear.

[00:10:37] Speaker 00:
to the IRS if there's information missing.

[00:10:43] Speaker 00:
Now here, we are focusing on the signature requirement, and the only case that determined the signature requirement and whether this could be waived was a case that... What Angelus Milling says on page 297

[00:11:01] Speaker 04:
It says the showing should be unmistakable that the commissioner has in fact seen fit to dispense with his formal requirements and to examine the merits of the claim.

[00:11:12] Speaker 04:
It is not enough that in some roundabout way, the facts supporting the claim may have reached him.

[00:11:18] Speaker 04:
That seems to be pretty clear that they're saying that maybe if somebody examined the return, they would have seen an identity of signatures and might have inferred from that that it wasn't properly

[00:11:30] Speaker 04:
sign that appears to be pretty clear language rejecting the position that you're taking.

[00:11:37] Speaker 00:
Correct, Your Honor.

[00:11:39] Speaker 00:
And again, here there was no roundabout way.

[00:11:41] Speaker 00:
The IRS wouldn't have to look at additional documents or previous filed tax return.

[00:11:47] Speaker 00:
Just on its face, all the tax return would have been clear that the signature requirement wasn't met, since not both taxpayers named on the return signed the return.

[00:12:00] Speaker 03:
Were you the person who signed the return?

[00:12:03] Speaker 00:
I'm sorry, could you repeat?

[00:12:04] Speaker 03:
Were you the person who signed the return?

[00:12:06] Speaker 00:
I was not the person who signed the return.

[00:12:07] Speaker 00:
It was a tax preparer.

[00:12:09] Speaker 00:
His name was John Anthony Castro.

[00:12:11] Speaker 03:
Well, I saw that in the opinions.

[00:12:13] Speaker 00:
No, I was working with a tax planning site for John Castro at that time.

[00:12:19] Speaker 00:
And for the convenience of the taxpayer, I signed the form 2848, which the IRS rejected.

[00:12:25] Speaker 00:
So that was not an issue in the judgment.

[00:12:29] Speaker 00:
the Form 2848 wasn't attached to the tax return.

[00:12:32] Speaker 00:
It was submitted to the IRS at a later date.

[00:12:39] Speaker 00:
Now, just going back to the statutory argument, I do want to point out that the government, in their motion to dismiss, they determined whether the signature or they argued that the case should be dismissed since the

[00:12:58] Speaker 00:
the regulations weren't met.

[00:13:00] Speaker 00:
So the government does not mention any statutes besides 7422A or ISC 911, which focus on foreign income, in their motion to dismiss only after the attorney for the petitioners raised the Angus Milling Doctrine in their response.

[00:13:19] Speaker 00:
Only then did the IRS start to argue that this is somehow a statutory requirement.

[00:13:26] Speaker 00:
And this is really the point that we would like to stress to this court, that there is no statutory requirement that a tax return shall be signed.

[00:13:35] Speaker 00:
The statutes itself point us to the regulation, and a statute pointing to the regulation does not somehow render a regulatory requirement an explicit statutory requirement.

[00:13:49] Speaker 00:
Now I do just want to address real quickly the jurisdictional issue under 7422A as well.

[00:13:56] Speaker 00:
The judgment found that 7422A was not met and therefore the court did not have jurisdiction.

[00:14:03] Speaker 00:
Now neither under the stare decisis exception nor the clear statement rule, which the latter was not contested by the government in their response brief, should 7422A be held jurisdictional

[00:14:16] Speaker 00:
Now, even the Supreme Court, in the most recent case, I would just clean with Elkhart Mining Company, did not describe 7422A as jurisdictional.

[00:14:27] Speaker 00:
They referred to it as a claim statute.

[00:14:30] Speaker 00:
Now, the only case that we really see where it was described as jurisdictional was in US versus Dom.

[00:14:37] Speaker 00:
Now, that case did come out in 1990.

[00:14:39] Speaker 00:
And in 2004, that's when the Supreme Court started.

[00:14:43] Speaker 00:
trying to bring more order to the term jurisdiction and what that means.

[00:14:48] Speaker 00:
So even if the waiver wasn't met, the court did not lack jurisdiction to hear the case.

[00:14:58] Speaker 04:
I'm not sure what difference that makes because what Angeles Millings says explicitly on 296 is insofar as Congress has made

[00:15:08] Speaker 04:
with statutory requirements, they must be observed and are beyond the dispensing power of Treasury officials.

[00:15:15] Speaker 04:
Correct.

[00:15:15] Speaker 04:
So jurisdictional or not, if it's statutory, it can't be waived by the Treasury.

[00:15:21] Speaker 00:
But 7422A requires a duly filed return.

[00:15:26] Speaker 00:
Now, if it wasn't waived and the return wasn't duly filed, that still doesn't render

[00:15:31] Speaker 00:
the court, or so does not state that the court has a lack of jurisdiction.

[00:15:35] Speaker 02:
Presuming, though, for a minute that we don't agree with your waiver argument, then do you agree that whether it's a jurisdictional requirement or just a statutory requirement, there would be a problem with you filing your case?

[00:15:50] Speaker 00:
We do not respectfully disagree with that since the judgments held that because the return wasn't duly filed, 7422A was not met and therefore the court did not have jurisdiction over the case.

[00:16:07] Speaker 00:
Now if 7422A is not jurisdictional, the violation of 7422A cannot

[00:16:15] Speaker 00:
I guess, rob the court of its jurisdiction of the subject matter.

[00:16:17] Speaker 02:
But it could prevent you from having a case.

[00:16:20] Speaker 00:
If the IRS.

[00:16:22] Speaker 02:
If it's just a statutory requirement that you have to have in order to be able to prove your case.

[00:16:27] Speaker 02:
But it's not a limit on our power to hear the case.

[00:16:31] Speaker 02:
The result is still the same, right?

[00:16:33] Speaker 02:
As long as it would be a dismissal, perhaps under a different provision,

[00:16:37] Speaker 02:
But it still would be a dismissal, correct?

[00:16:40] Speaker 00:
Correct.

[00:16:40] Speaker 00:
As long as the opposing side brought that in a timely manner, which is the opening brief here did argue that the motion to dismiss came at a very delayed time in this case.

[00:16:54] Speaker 00:
And therefore, it was not timely anymore.

[00:16:57] Speaker 03:
Counsel, your time has expired.

[00:16:59] Speaker 03:
We'll give you one minute for rebuttal.

[00:17:01] Speaker 00:
Thank you.

[00:17:02] Speaker 03:
Which is what you requested.

[00:17:05] Speaker 03:
Mr. Rosenberg.

[00:17:07] Speaker 03:
Do I understand you prefer to wear your mask?

[00:17:17] Speaker 01:
If that's OK, I will try to project my voice so that you can hear me.

[00:17:20] Speaker 03:
That's fine.

[00:17:24] Speaker 01:
Good morning, Your Honors.

[00:17:25] Speaker 01:
May it please the court, Isaac Rosenberg for the United States.

[00:17:29] Speaker 01:
By statute, individual taxpayers must personally sign and verify their income tax refund claims

[00:17:36] Speaker 01:
or else comply strictly with the regulations that govern the execution of those claims.

[00:17:40] Speaker 03:
Where is the word personally in the statute?

[00:17:43] Speaker 01:
It is not in 6061A.

[00:17:45] Speaker 01:
But we're not reading 6061A in isolation.

[00:17:49] Speaker 01:
We have to read it in context of the entire scheme.

[00:17:52] Speaker 01:
Section 6012A1 requires any individual with income over a certain threshold to make a return.

[00:18:00] Speaker 01:
It also requires, so individuals who have income above threshold have to make the return.

[00:18:06] Speaker 01:
and read in combination with section 6061A, the person, the taxpayer, the party assessed is the person who has to sign the return.

[00:18:15] Speaker 02:
Don't people often have somebody else prepare their tax returns?

[00:18:20] Speaker 01:
Yes.

[00:18:21] Speaker 02:
And is there a statute that allows for that?

[00:18:24] Speaker 01:
Yes, there is a statute that allows for that.

[00:18:26] Speaker 02:
I'm not sure that I see your point that just because an individual has to make a return that means that 6061 should be read as meaning that individual has to be the person who signs when the statute doesn't say all it says is shall be signed.

[00:18:42] Speaker 02:
It doesn't say by whom.

[00:18:43] Speaker 01:
Well, the party that has the obligation to file the return is the party assessed.

[00:18:48] Speaker 01:
That's in 6012.

[00:18:50] Speaker 01:
The party assessed is the person who has to make the return.

[00:18:53] Speaker 01:
The preparer is not the party assessed.

[00:18:55] Speaker 01:
The preparer is someone who hires.

[00:18:58] Speaker 01:
to prepare the return for them and then the taxpayer makes the return because the taxpayer... This doesn't say the person who makes it.

[00:19:06] Speaker 02:
It just says shall be signed.

[00:19:07] Speaker 02:
It doesn't say who shall sign at all.

[00:19:09] Speaker 02:
It doesn't even describe them by function.

[00:19:11] Speaker 01:
6061A does not define return.

[00:19:13] Speaker 01:
It does not.

[00:19:14] Speaker 01:
It says returns and other documents required to be made.

[00:19:17] Speaker 01:
So a return is also a document required to be made, but a return is, again, the obligation to file the return, to make the return,

[00:19:26] Speaker 01:
is imposed on the individual taxpayer, because that is the party assessed.

[00:19:29] Speaker 01:
And if there's any confusion about that, the court can look at section 6107.

[00:19:34] Speaker 01:
Judge Stoll, you asked about preparers.

[00:19:37] Speaker 01:
Section 6107 says that a preparer has to furnish a copy of the completed return or refund claim to the taxpayer at the time that the return is signed by the taxpayer.

[00:19:48] Speaker 01:
So even if there was some ambiguity, which there isn't, and Browns don't argue that there is,

[00:19:53] Speaker 01:
about who has to sign an individual income tax return, you can look at 6107, and that supplies a very clear answer.

[00:20:01] Speaker 03:
Are you saying that shall be signed must mean by the taxpayer because it's the taxpayer that's filing the return, not the practitioner?

[00:20:14] Speaker 01:
That's right.

[00:20:14] Speaker 01:
The preparer is not making the return.

[00:20:16] Speaker 01:
The preparer doesn't have the statutory obligation to file the return.

[00:20:20] Speaker 01:
That obligation runs against the taxpayer who is the party assessed, and it is the party assessed who has to sign.

[00:20:27] Speaker 01:
Now, the requirement to sign and the requirement to verify are not technical or formalistic.

[00:20:31] Speaker 01:
It's not like filing it on the wrong piece of paper.

[00:20:34] Speaker 01:
By signing a return or a refund claim, the taxpayer shows that he has authorized its filing and agrees to be bound by the document.

[00:20:43] Speaker 01:
And by verifying the document under the penalties of perjury, the taxpayer gives the IRS

[00:20:48] Speaker 01:
a basis to rely on the information given to support the claim.

[00:20:53] Speaker 01:
Our system of tax administration depends on self-reporting and self-assessment.

[00:20:58] Speaker 01:
That system could not function properly without the taxpayer signature and verification requirements.

[00:21:03] Speaker 03:
Now, every 1040 form has a place for identification of the tax preparer, professional tax preparer, as opposed to the taxpayer.

[00:21:17] Speaker 03:
Are you saying that doesn't obviate the need for the taxpayer to sign the return somehow, either electronically or actually?

[00:21:28] Speaker 01:
When we're talking about returns, which can be electronically filed, no, the taxpayer always has to sign, unless they have a duly authorized agent or some other exception to the default rule for individual signatures applies.

[00:21:41] Speaker 01:
And then you have to comply strictly with the exceptions.

[00:21:44] Speaker 01:
The regulations not only require

[00:21:46] Speaker 01:
not only echoed the statutory requirement that the taxpayer verify the information in the return, the regulation also requires the tax preparer to verify the return too.

[00:21:56] Speaker 01:
So both the taxpayer and the preparer are verifying the document.

[00:22:02] Speaker 01:
There are separate requirements.

[00:22:03] Speaker 04:
How big an issue is this?

[00:22:05] Speaker 04:
Does this come up a fair amount?

[00:22:07] Speaker 04:
I mean, there seems to be a paucity of cases about it.

[00:22:11] Speaker 01:
This is an unusual case.

[00:22:13] Speaker 01:
These are unusual cases.

[00:22:14] Speaker 01:
I think historically taxpayers might have pursued a different theory, and in fact, in the Dixon case, the taxpayer, which is the first in this line of cases that we've seen out of the Court of Federal Claims, the taxpayers initially challenged the regulation as invalid, and then they said that the regulation didn't apply, and it was only a third or fourth backstop argument to say that the requirements could be waived because they weren't statutory.

[00:22:41] Speaker 01:
I'm not aware of any case law saying that for a refund claim, it can be basically unverified or unsigned and still be duly filed under Section 7422A.

[00:22:51] Speaker 03:
And there's some... Where is the definition of duly filed?

[00:22:56] Speaker 01:
It's not in the statute.

[00:22:59] Speaker 01:
It is rather...

[00:23:02] Speaker 01:
Section 7422A says, duly filed in accordance with the provisions of law and the regulations governing refund claims.

[00:23:09] Speaker 01:
So section 6061A is a provision of law that governs refund claims.

[00:23:15] Speaker 01:
Section 6065 is a statute that governs refund claims.

[00:23:20] Speaker 01:
Section 301.6402-2 is a regulation that governs refund claims.

[00:23:27] Speaker 01:
All of those statutes and the regulation, as well as on the form itself and in the instructions,

[00:23:32] Speaker 01:
It says, taxpayer, sign, and verify.

[00:23:35] Speaker 01:
These requirements are very clearly stated.

[00:23:39] Speaker 03:
Well, I think I'm looking at 6402.

[00:23:42] Speaker 03:
It must set forth and detail each ground upon which a credit refund is claimed.

[00:23:54] Speaker 03:
It must be verified by a written declaration that it is made under the penalty of perjury.

[00:24:00] Speaker 03:
Where does it say must be signed by the taxpayer?

[00:24:04] Speaker 01:
Well, the signature requirement is in 6061A.

[00:24:07] Speaker 01:
And 6061A applies not only to returns, which these refund claims were in the form of returns, it also applies to documents required to be made.

[00:24:18] Speaker 01:
A refund claim is required to be made by the taxpayer if they want the return of their funds from the government, especially if they want it outside the statute of limitations, which is what the Browns have sought here.

[00:24:28] Speaker 03:
So you're getting back again to shall be signed, which is not explicit, but by inference, you're saying, because it's the return of the taxpayer, the taxpayer must sign it.

[00:24:41] Speaker 01:
Yeah.

[00:24:41] Speaker 01:
And 64-2, I think, also makes clear, if it's not 64-2, it may be 65-11, that the taxpayer is the person filing the return of the refund claim.

[00:24:51] Speaker 01:
The taxpayer is the only party allowed to file the claim for refund unless, under the regulation,

[00:24:58] Speaker 01:
They have duly authorized an agent to do it for them.

[00:25:03] Speaker 04:
What about the waiver issue?

[00:25:08] Speaker 01:
What in particular, Your Honor?

[00:25:09] Speaker 01:
Pardon me?

[00:25:10] Speaker 04:
What in particular about waiver?

[00:25:11] Speaker 04:
Well, I mean, the government's position

[00:25:14] Speaker 04:
is that there couldn't be a waiver here because of a lack of awareness by the IRS of the signature problem.

[00:25:22] Speaker 04:
They say you look at the return and the signature for the husband and wife are the same, so that put the IRS on notice.

[00:25:31] Speaker 01:
Well, a few things about that.

[00:25:33] Speaker 01:
The first is the idea that those two signatures were so obviously identical that the IRS should have known.

[00:25:39] Speaker 01:
that they were the same and so there was some deficiency.

[00:25:42] Speaker 01:
I don't believe that argument was raised in the Court of Federal Claims.

[00:25:44] Speaker 01:
That's a new argument.

[00:25:45] Speaker 01:
It wasn't in their briefs either.

[00:25:46] Speaker 01:
So that's the first problem.

[00:25:49] Speaker 01:
The second problem is the statutory presumption that the signature of the taxpayer is presumed authentic.

[00:25:55] Speaker 01:
These signatures are illegible scroll.

[00:25:58] Speaker 01:
If they had been perfect script and it was very obvious that they were signed by the same person, maybe that presumption would not apply.

[00:26:07] Speaker 01:
And then the third problem is

[00:26:09] Speaker 01:
even if it was obvious that there was some problem.

[00:26:11] Speaker 01:
And again, we don't think that there is.

[00:26:14] Speaker 01:
The only thing that the Browns have pointed to to show that the IRS was aware of it is this April 26th, 2019 letter that refers to the Form 1040X or informal claim.

[00:26:26] Speaker 01:
They latch onto that second part of the disjunctive or informal claim and say, well, obviously they found some problem with the signatures and let it go.

[00:26:36] Speaker 01:
But these refund claims had more than one problem.

[00:26:39] Speaker 02:
They also are relying on the very fact that the return was considered and analyzed, right?

[00:26:45] Speaker 02:
That no problem was flagged.

[00:26:49] Speaker 01:
Well, there was certainly nothing flagged in that letter.

[00:26:51] Speaker 02:
Right.

[00:26:54] Speaker 01:
But the Brown's refund claims had more than one defect.

[00:26:57] Speaker 01:
So not only were they improperly executed, but on the line where Mr. Castro was supposed to sign and verify himself,

[00:27:04] Speaker 01:
which is a requirement not only on the form, but of the regulation, he very obviously did not provide his signature.

[00:27:10] Speaker 01:
So who's to say, it's certainly not clear and unmistakable from that phrase referring to an informal claim, that the IRS knew that this illegible scrawl on these two signature lines meant that it was not properly signed and executed.

[00:27:23] Speaker 02:
Can I ask you about section 6065?

[00:27:28] Speaker 02:
That doesn't say a signature, but does say it has to be verified by a written declaration.

[00:27:33] Speaker 02:
that it is made under the penalties of perjury.

[00:27:37] Speaker 02:
Does this help your case?

[00:27:39] Speaker 02:
A written declaration usually requires a signature.

[00:27:42] Speaker 01:
Yes, and on the Form 1040 and Form 1040X, there's only one place to sign, and it's right below the declaration, right, the jurat.

[00:27:50] Speaker 02:
So if a claim, if someone... I hear what you're saying about that, but that sounds like a regulation, not a statute.

[00:27:55] Speaker 02:
When we're getting to the point where we're saying what the form says, that's no longer statutory, right?

[00:28:01] Speaker 01:
No, I understand.

[00:28:02] Speaker 01:
What I'm saying is that the signature and verification requirement, the fact that a declaration would implicitly have a signature, in practice, on a Form 1040, where you sign your return, it serves both the 6061A function and the 6065 function.

[00:28:19] Speaker 01:
Both those statutes are satisfied when you sign

[00:28:22] Speaker 01:
on the line under the jurat on the form 1040 or form 1040.

[00:28:25] Speaker 02:
I understand, but is there something about section 6065 that should be telling me that it's in fact the taxpayer that needs to be the person who signs the written declaration, not the tax preparer?

[00:28:35] Speaker 01:
Well, it says a return.

[00:28:37] Speaker 01:
And again, looking at 6012A1A, which makes the taxpayer, the party assessed, the person responsible for making the return.

[00:28:47] Speaker 01:
And because a refund claim is a document required to be made and can only be made and filed by the taxpayer, unless an exception applies, the obligation to sign and verify by default is the party assessed.

[00:28:58] Speaker 01:
And we're talking about individual income tax refunds, the party assessed is the individual taxpayer, and in this case, husband and wife on a joint return.

[00:29:07] Speaker 01:
I don't think the Browns dispute that if there was no regulation, they would have to sign personally.

[00:29:13] Speaker 01:
And I don't think they dispute that if the regulation didn't allow an agent to execute,

[00:29:17] Speaker 01:
They would also have to personally sign and verify their returns.

[00:29:20] Speaker 01:
In essence, what they're saying is because the regulations parrot the requirements of the statutes, you can disregard the statutes as though they don't impose any requirements.

[00:29:30] Speaker 01:
And then the IRS, having echoed the statute in the regulation, can waive the requirements.

[00:29:36] Speaker 01:
That's a perverse theory.

[00:29:39] Speaker 01:
The requirements of the statute are clear.

[00:29:41] Speaker 01:
They're compulsory.

[00:29:42] Speaker 01:
The IRS does not have discretion to waive them.

[00:29:46] Speaker 01:
What the IRS has done in promulgating the regulation is contemplate a scenario where an agent can execute when they're duly authorized, and contemporaneous proof is supplied to the IRS.

[00:29:59] Speaker 01:
But barring that contemporaneous proof of authority, it's not signed and verified under the statute.

[00:30:06] Speaker 01:
And the Browns are not challenging the validity of the regulation.

[00:30:12] Speaker 01:
If it could be the case that a taxpayer

[00:30:15] Speaker 01:
could, after the execution or after the submission of the refund claim, say whether they want to be bound by the document or not, depending on the consequences, that's the natural conclusion of the Brown's position.

[00:30:29] Speaker 01:
The statute and the regulation that implements it requires contemporaneous proof of authority to file, agreement to be bound, and verification under the penalties of perjury.

[00:30:43] Speaker 01:
In the Brown's view, if we miss it,

[00:30:46] Speaker 01:
and they get caught later, the taxpayer can decide, yes, I want to be bound by it because I want to be able to pursue my refund claim, or no, I didn't authorize that filing because now the IRS is assessing penalties for this filing that I now think I want to disclaim.

[00:31:04] Speaker 01:
The Brightline rule that is required by the statute, which is echoed in the regulation, is a good one.

[00:31:10] Speaker 01:
It's very clear, and the Browns violated it.

[00:31:13] Speaker 01:
That's why the trial court properly dismissed this case.

[00:31:17] Speaker 01:
The claims were not duly filed in accordance with the provisions of law and the regulation governing refund claims.

[00:31:26] Speaker 03:
Anything further counsel?

[00:31:28] Speaker 01:
No, Your Honor.

[00:31:28] Speaker 01:
Thank you.

[00:31:29] Speaker 03:
Thank you.

[00:31:32] Speaker 03:
Ms.

[00:31:33] Speaker 03:
Hunt has one minute, which is what you asked for.

[00:31:37] Speaker 00:
May it please the court.

[00:31:38] Speaker 00:
The government just argued that there's a bright line rule that the taxpayer has to sign their own tax return.

[00:31:45] Speaker 00:
yet they could not point to a single statute that states that.

[00:31:49] Speaker 00:
We're not saying that the regulations don't indicate what is a valid signature.

[00:31:54] Speaker 00:
We're saying it's not in the statute.

[00:31:56] Speaker 00:
Now, if Congress wanted to be clear on who can sign a tax return,

[00:32:00] Speaker 00:
they would have included in their statute.

[00:32:02] Speaker 00:
They did for 6062 and 6063, which deals corporate and partnership returns.

[00:32:08] Speaker 00:
The statutes are very clear here who can sign a tax return.

[00:32:12] Speaker 00:
Now, we don't see that same explicit language in the statutes when we're dealing about individual tax returns.

[00:32:21] Speaker 00:
Now, in regards to 6511, which is the penalty of perjury statute,

[00:32:28] Speaker 00:
All the cases dealing here where the court found that this was violated was an incident where the juror was altered, not where it was unsigned.

[00:32:37] Speaker 00:
Thank you.

[00:32:39] Speaker 03:
Thank you, counsel.

[00:32:40] Speaker 03:
The case will be taken under submission.