Ramon D. Baney v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAMON D. BANEY,
Plaintiff-Appellant
MARION D. BANEY,
Plaintiff
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1085
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01037-AOB, Judge Armando O. Bonilla.
______________________
Decided: September 16, 2024
______________________
RAMON D EW AYNE B ANEY , J R., Braitling, NT, Australia,
pro se.
I SAAC B. ROSENBERG, Tax Division, United States De-
partment of Justice, Washington, DC, for defendant-appel-
lee. Also represented by MICHAEL J. HAUNGS ; D AVID
HUBBERT .
______________________
Case: 24-1085 Document: 29 Page: 1 Filed: 09/16/2024

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BANEY v. US 2
Before D YK, STOLL , and STARK, Circuit Judges.
P ER CURIAM .
Ramon D. Baney appeals the final decision of the
United States Court of Federal Claims granting judgment
to the government on Mr. Baney’s claim for a tax refund
and the government’s counterclaim for return of an errone-
ous tax refund. We affirm.
I
Mr. Baney, a United States citizen, moved to Australia
in 1995 to begin employment as an engineer/senior systems
controller with a United States Department of Defense con-
tractor at the Joint Defense Facility Pine Gap (“Pine Gap”).
As a condition of his employment, Mr. Baney was required
to execute a series of Internal Revenue Service (“IRS”)
Closing Agreements, by which he agreed to pay United
States income taxes in exchange for being exempted from
Australian foreign resident taxes. Each Closing Agree-
ment was expressly executed “in pursuance of section
7121” of the Internal Revenue Code (“I.R.C.”), which is cod-
ified at 26 U.S.C. § 7121, and provided that Mr. Baney “ir-
revocably waives and foregoes any right” to elect a foreign
earned income exclusion under I.R.C. § 911(a) on his
United States tax returns. See, e.g., S. App’x 47-49.1
Consistent with the Closing Agreement covering tax
years 2015 through 2017, Mr. Baney did not seek a § 911
exclusion when he originally filed joint tax returns (with
his wife, Marion Baney2) for the 2016 and 2017 tax years.
However, the Baneys later submitted amended tax returns
1 References to S. App’x refer to the Supplemental
Appendix submitted by the government.
2 Although Ms. Baney was a plaintiff in the trial
court, she is not an appellant, as she is not listed on the
Notice of Appeal and expressly indicated that she is not
participating in the appeal.
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BANEY v. US 3
that did attempt to claim the § 911 exclusion for those
years. This effort proved successful with respect to the
2016 tax year, as the IRS paid a retroactive tax refund of
$17,813.13 for that year. By contrast, the IRS disallowed
the 2017 amended return because it found the Baneys had
waived their right to make the foreign earned income ex-
clusion election by executing the Closing Agreement.
The Baneys sued the United States in the Court of Fed-
eral Claims, challenging the IRS’ disallowance of their
2017 amended tax return and claiming entitlement to a re-
fund of $17,003 plus interest. The government answered
the complaint and also filed a counterclaim seeking recov-
ery of the $17,813.13 refund the IRS had mistakenly remit-
ted to the Baneys for 2016.
The parties submitted competing motions for summary
judgment, both of which the trial court resolved in favor of
the government. The court concluded that the Closing
Agreements were valid by adopting the findings and con-
clusions from a factually similar case decided by the United
States Tax Court, Smith v. Commissioner of the Internal
Revenue Service, 159 T.C. 3, 2022 WL 3654871 (2022). As
relevant here, the Court of Federal Claims determined
that: (1) the Closing Agreements were valid and enforcea-
ble interpretations of the governing treaty between the
United States and Australia; (2) the Closing Agreements
were signed by duly authorized individuals; (3) Mr. Baney’s
claims of malfeasance, including material misrepresenta-
tion of fact, were undercut by the fact that Mr. Baney had
previously executed ten nearly-identical Closing Agree-
ments over a 20-year period; and (4) Ms. Baney’s failure to
sign the 2015-2017 Closing Agreement did not render it un-
enforceable because she subsequently ratified it by signing
an identical agreement for a later period. Having thus re-
jected each of the Baneys’ arguments, the trial court held
that the valid, enforceable Closing Agreement barred the
Baneys from claiming the § 911 exclusion for the relevant
tax years. On this basis, the court concluded that the IRS
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BANEY v. US 4
properly disallowed the 2017 amended tax return, and that
the Baneys had received an erroneous refund for 2016.
Mr. Baney timely appealed to our court. The Court of
Federal Claims had jurisdiction under 28 U.S.C.
§§ 1346(a)(1), 1503. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II
We accord de novo review to the Court of Federal
Claims’ rulings on motions for summary judgment. See
GSS Holdings (Liberty) Inc. v. United States, 81 F.4th
1378, 1381 (Fed. Cir. 2023). Pursuant to Rule 56(a) of the
Rules of the United States Court of Federal Claims, sum-
mary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
III
The disposition of this appeal turns on whether the
Closing Agreement covering tax years 2015-2017 is valid
and enforceable against the Baneys, as the government
contends, or whether, instead, that Closing Agreement is
invalid and the Baneys were therefore free to claim the
§ 911 exclusion, as Mr. Baney argues. We agree with the
government that the Closing Agreement was valid and en-
forceable. Mr. Baney’s arguments to the contrary lack
merit.
We first disagree with Mr. Baney’s contention that the
IRS lacked authority to execute the Closing Agreements.3
The Closing Agreements were expressly made “under and
3 Mr. Baney’s appeal focuses on the authority of the
IRS as an agency, and does not (other than in passing) chal-
lenge the Court of Federal Claims’ conclusion that the IRS
delegated authority to the Acting Director of the IRS
Treaty Administration to sign the Closing Agreement.
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BANEY v. US 5
in pursuance of [I.R.C. § 7121],” S. App’x 47, which author-
izes the Secretary of the Treasury “to enter into an agree-
ment in writing with any person relating to the liability of
such person (or of the person or estate for whom he acts) in
respect of any internal revenue tax for any taxable period,”
26 U.S.C. § 7121(a). The Secretary delegated this author-
ity directly to the Commissioner of the IRS through 26
C.F.R. § 301.7121-1(a), which broadly permits the Commis-
sioner to enter into a Closing Agreement “in any case in
which there appears to be an advantage in having the case
permanently and conclusively closed.” Mr. Baney makes
no persuasive argument that the IRS lacked authority to
enter into the Closing Agreement due to the terms of the
1982 Income Tax Treaty or some other treaty. See Smith,
2022 WL 3654871, at *11-16.
Mr. Baney next argues that the Closing Agreement is
void because it contains a misrepresentation of material
fact, namely that Mr. Baney’s income was “subject to taxa-
tion by the Government of the Commonwealth of Aus-
tralia.” S. App’x 47. While § 7121 provides that “final and
conclusive” Closing Agreements may nonetheless be reo-
pened and set aside “upon a showing of fraud or malfea-
sance, or misrepresentation of a material fact,” I.R.C.
§ 7121(b), Mr. Baney failed to prove that any of these bases
for rescission are present here. The record lacks sufficient
evidence to raise a genuine issue of material fact as to
whether the government engaged in fraud, malfeasance, or
misrepresentation. Showing misrepresentation of a mate-
rial fact, for instance, requires establishing inducement,
justified reliance, and either fraudulence or the materiality
of the misrepresentation. See Restatement (Second) of
Contracts § 164; see also Marathon Oil Co. v. United States,
42 Fed. Cl. 267, 276 (1998), aff’d, 215 F.3d 1343 (Fed. Cir.
1999) (table). Mr. Baney failed to provide evidence demon-
strating each of these required elements. See SRI Int’l
v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.
Cir. 1985) (holding “mere denials or conclusory statements
are insufficient” to overcome summary judgment). Hence,
even if the Closing Agreement contains incorrect
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BANEY v. US 6
statements (and we have no occasion to assess the accuracy
of these statements), Mr. Baney cannot meet the require-
ments for recission.4
Lastly, Mr. Baney briefly contends that the 2015-2017
Closing Agreement is unenforceable because it was not
signed by Ms. Baney, and the tax returns at issue were
filed jointly. We disagree. The only income involved here
is Mr. Baney’s income and there is no dispute that Mr.
Baney duly executed the agreement. He, therefore, is
bound by it.
IV
We have considered Mr. Baney’s remaining arguments
and find them unpersuasive. For the forgoing reasons, we
affirm the Court of Federal Claims’ decision.
AFFIRMED
COSTS
No costs.
4 Given our conclusion, we need not address Smith’s
view that misstatements of foreign law cannot qualify as
misstatements of fact under § 7121(b). See 2022 WL
3654871, at *24.
Case: 24-1085 Document: 29 Page: 6 Filed: 09/16/2024

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