Vensure Hr, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
VENSURE HR, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1640
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00728-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: October 4, 2024
______________________
R IC HULSHOFF, Ric Hulshoff Attorney at Law, PLLC,
Henderson, NV, argued for plaintiff-appellant. Also repre-
sented by J ASON M. SILVER , Silver Law, PLC, Scottsdale,
AZ.
I SAAC B. R OSENBERG, Tax Division, United States De-
partment of Justice, Washington, DC, argued for defend-
ant-appellee. Also represented by BRUCE R. E LLISEN,
DAVID A. HUBBERT.
______________________
Before P ROST, C LEVENGER , and CHEN, Circuit Judges.
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VENSURE HR, INC. v. US 2
P ROST, Circuit Judge.
Vensure HR, Inc. (“Vensure”) appeals the final judg-
ment of the U.S. Court of Federal Claims dismissing Ven-
sure’s complaint for failing to state a claim upon which
relief could be granted. Vensure HR, Inc. v. United States,
164 Fed. Cl. 276 (2023) (“Decision”).
This case involves the procedural mechanisms for filing
a tax refund for penalties under the Internal Revenue
Code. Vensure filed certain tax-penalty-refund claims,
which the Internal Revenue Service (“IRS”) denied on their
merits. Then, when Vensure filed a complaint in the Court
of Federal Claims, the IRS sought to dismiss the complaint
based on a procedural flaw with Vensure’s claims—namely,
that Vensure had failed to “attach” a power of attorney to
those claims. Despite having already filed two powers of
attorney that potentially covered these tax claims, the
Court of Federal Claims dismissed Vensure’s case on the
sole basis that a power of attorney was not “attached” to
the claims at the time of filing. The question before us is
whether the regulation that requires a power of attorney to
“accompany” a claim is an explicit statutory requirement,
which cannot be waived, or is purely regulatory in nature
and thus waivable. We conclude that 26 C.F.R.
§ 301.6402-2(e)’s requirement that “a power of attorney
must accompany the claim” is regulatory and not statutory.
Therefore, this requirement may be waived by the IRS in
certain circumstances. In other words, while the IRS may
demand strict compliance with its regulations, when it fails
to do so, and instead addresses a claim on its merits, the
requirement may be waived. For the reasons below, we va-
cate and remand for further proceedings.
B ACKGROUND
I
Vensure is a professional-employer organization that
provides other companies with services to outsource
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VENSURE HR, INC. v. US 3
employee-management tasks, including payroll and tax re-
porting services. As part of the tax reporting services, Ven-
sure withholds, reports, and pays employment-related
taxes on behalf of companies to the IRS.
In the second quarter of 2014, Vensure reported and
paid employment taxes. Believing those payments to be an
overpayment of more than $3.7 million, Vensure filed tax
refund claims with the IRS in October 2014 and June
2015.1 App’x 61.2 Vensure alleges that these overpay-
ments “led to Vensure’s inability to timely pay” taxes for
later periods. App’x 62. As a result of the belated pay-
ments, the IRS assessed tax penalties amounting to more
than $1.5 million. App’x 47.
Vensure fully paid the belated tax payments and pen-
alties but sought a refund or abatement of the tax penalties
through the filing of six IRS Forms 843 in March 2016.
App’x 34–39 (collectively, the “penalty-refund claims”).
When a Form 843 is filed by a corporation, like Vensure,
the form must generally be signed by “a corporate officer
authorized to sign.” E.g., App’x 34. But the IRS “Instruc-
tions for Form 843” also allow an authorized representative
to sign and file Form 843 on behalf of the taxpayer. Here,
each of the Forms 843 was signed by Chris J. Sheldon, an
attorney representing Vensure in the preparation of vari-
ous tax forms.
When a legal representative signs a tax form on behalf
of a taxpayer, a power of attorney must grant the legal rep-
resentative authority to execute the claims. Form 2848
may be used to grant a power of attorney “to authorize an
individual to represent you before the IRS.” App’x 158.
1 The IRS granted a refund of approximately
$750,000 in overpayments. App’x 50.
2 “App’x” refers to the appendix filed by Vensure
(ECF No. 13).
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VENSURE HR, INC. v. US 4
Specifically, the instructions to Form 843 state: “If [the tax-
payer’s] authorized representative files Form 843, the orig-
inal or copy of Form 2848, Power of Attorney and
Declaration of Representative, must be attached.”
S.App’x 2.3 It is undisputed here that Vensure did not con-
currently attach a Form 2848 to any of the six penalty-re-
fund claims at the time of filing. There were, however, at
least three Forms 2848 filed with the IRS at various points
in time that purport to give Mr. Sheldon power of attorney
over Vensure’s penalty-refund claims. Vensure identifies
two Forms 2848 executed in 2015 and faxed to the IRS’s
Centralized Authorization File (“CAF”) unit.4 And, in
2017, Vensure sent the IRS a formal protest for the disal-
lowance of the penalty-refund claims and attached a power
of attorney, confirming that Silver Law, where Mr. Sheldon
was employed, represents Vensure for the tax periods and
penalties at issue here. See S.App’x 15.
In 2018, the IRS denied Vensure’s penalty-refund
claims because Vensure had not met a “reasonable cause”
exception to avoid the penalties. App’x 40–46; App’x 48;
App’x 64. In denying these claims, the IRS sent its decision
letters to Mr. Sheldon “under the provisions of your power
of attorney or other authorization we have on file.”
App’x 40; App’x 43.
II
After pursuing administrative remedies at the IRS,
Vensure filed a complaint in the Court of Federal Claims
in June 2020, seeking a refund of the penalties imposed
3 “S.App’x” refers to the supplemental appendix filed
by the government (ECF No. 21).
4 “The CAF is a computerized system of records
which houses authorization information from both powers
of attorney and tax information authorizations.” Appellee’s
Br. 29 (cleaned up).
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VENSURE HR, INC. v. US 5
and collected by the IRS. App’x 47. In response, the gov-
ernment, as defendant, filed a series of motions to dismiss:
the first two were denied without prejudice, but the third
motion, at issue here, was granted. In this third and final
motion, the government moved to dismiss Vensure’s com-
plaint under Rule 12(b)(1) of the Rules of the U.S. Court of
Federal Claims (“RCFC”) for lack of subject-matter juris-
diction because Vensure’s penalty-refund claims were not
“duly filed” under 26 U.S.C. § 7422(a). See App’x 83–85.
The government asserted that there were two “flaws” with
Vensure’s claims: (1) Vensure had not signed and verified
the claims under 26 U.S.C. §§ 6061(a) and 6065, and
(2) Vensure had not attached a power of attorney to the
Forms 843 for refund that would permit Mr. Sheldon to
sign those forms and properly submit the claims. Appel-
lee’s Br. 11. Vensure’s response argued, among other
things, that Brown v. United States, 22 F.4th 1008 (Fed.
Cir. 2022), confirmed that § 7422(a) is non-jurisdictional
and that Vensure “substantially complied” with the power
of attorney requirement with the filing of its previous
Forms 2848. Decision, 164 Fed. Cl. at 285.
The Court of Federal Claims agreed with Vensure that
§ 7422(a) is non-jurisdictional but “convert[ed] defendant’s
jurisdictional motion into a motion to dismiss pursuant to
RCFC 12(b)(6).” Id. at 284. Then, relying on § 7422(a), 26
C.F.R. § 301.6402-2(e), Brown, and various IRS instruc-
tions, the Court of Federal Claims determined that Ven-
sure had “failed to ‘duly file’ its refund claims” because “a
valid power of attorney must be submitted together with a
refund claim” and Vensure “failed to attach to its refund
claims any power of attorney forms.” Id. at 286–87. The
Court of Federal Claims further determined that this at-
tachment requirement is statutory and thus cannot be
waived. Id. at 288. The Court of Federal Claims then
granted the government’s motion to dismiss.
Vensure timely appeals, and we have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
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VENSURE HR, INC. v. US 6
DISCUSSION
We review de novo whether the Court of Federal
Claims properly dismissed a complaint for failure to state
a claim. See Dixon v. United States, 67 F.4th 1156, 1165
(Fed. Cir. 2023).
Vensure raises three issues on appeal: (1) whether 26
C.F.R. § 301.6402-2(e)’s requirement that “a power of at-
torney must accompany the claim” (i.e., the “accompany”
requirement) means a power of attorney must be attached
to the claim for refund; (2) whether § 301.6402-2(e)’s use of
“accompany” is a statutory, non-waivable requirement or is
regulatory and thus waivable; and (3) whether the IRS
waived the “accompany” requirement of § 301.6402-2(e)
here.
The parties each provide their own definitions of “ac-
company” within the context of § 301.6402-2(e). Vensure
argues that “accompany” means “relevant,” “on file and . . .
existing at the time, valid, and sufficient to authorize the
signing of the . . . Form 843.” Oral Arg. at 1:34‒49.5 The
government argues that “accompany” means “attach.”
E.g., Appellee’s Br. 20. But we need not construe “accom-
pany” to resolve this dispute. Instead, we first address
Vensure’s second issue and conclude that § 301.6402-2(e)’s
“accompany” requirement is regulatory and waivable. We
then provide guidance to the Court of Federal Claims to
determine on remand whether the IRS waived the “accom-
pany” requirement of § 301.6402-2(e) here.
I
The Supreme Court has distinguished between “ex-
plicit statutory requirements” and “detailed administrative
regulations” governing tax refund procedures. Angelus
5 No. 23-1640, https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=23-1640_07092024.mp3.
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VENSURE HR, INC. v. US 7
Milling Co. v. Comm’r, 325 U.S. 293, 296 (1945). “Insofar
as Congress has made explicit statutory requirements,
they must be observed and are beyond the dispensing
power of Treasury officials.” Id. In contrast, where a re-
quirement is regulatory in nature, the Commissioner of the
IRS may “insist upon full compliance with his regulations,”
or those requirements may, under certain circumstances,
be waived. Id. “The basis of this claim of waiver is that the
Commissioner through his agents dispensed with the for-
mal requirements of a claim by investigating its merits.”
Id.
In Angelus Milling, the Supreme Court drew a clear
distinction between “explicit statutory requirements” con-
tained in statutes enacted by Congress concerning the col-
lection of taxes and “[t]he effective administration of these
modern complicated revenue measures [which] inescapa-
bly leads Congress to authorize detailed administrative
regulations by the Commissioner of Internal Revenue.” Id.
The Supreme Court further emphasized that “Congress
has given the Treasury this rule-making power for self-pro-
tection and not for self-imprisonment,” and “[i]f the Com-
missioner chooses not to stand on his own formal or
detailed requirements, it would be making an empty ab-
straction, and not a practical safeguard, of a regulation to
allow the Commissioner to invoke technical objections after
he has investigated the merits of a claim and taken action
upon it. Even tax administration does not as a matter of
principle preclude considerations of fairness.” Id. at 297.
None of the multiple items of necessary factual information
required by the applicable regulations were submitted by
the taxpayer in Angelus Milling—only the name and ad-
dress of the joint claimants and a statement of the dates
and amounts of the tax payments made by one of the joint
claimants. Id. at 294 n.2. The specific informational re-
quirements set forth in the multiple regulations involved
in Angelus Milling were deemed by the Supreme Court to
be regulatory in nature, subject to waiver by the
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VENSURE HR, INC. v. US 8
Commissioner, and not statutory commands beyond the
Commissioner’s discretion to waive.
To determine whether the “accompany” requirement of
§ 301.6402-2(e) is statutory or regulatory, and thus
whether it is waivable, we begin with a review of the rele-
vant statutes and articulate the scope of the “explicit stat-
utory requirements” relevant in this case. We then turn to
the “accompany” requirement of § 301.6402-2(e) and con-
clude that it is a purely regulatory requirement. Finally,
we explain why the government’s interpretation of
Brown—to require strict compliance with all signature and
verification regulations—is so broad as to conflict with the
Supreme Court’s guidance in Angelus Milling.
A
We begin with the relevant statutory provisions gov-
erning the filing of returns and actions for refunds. The
parties, and the Court of Federal Claims, cited three.
Section 7422(a), which provides the statutory cause of
action for a tax refund suit in the Court of Federal Claims,
states:
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 as-
sessed 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 man-
ner wrongfully collected, until a claim for refund or
credit has been duly filed with the Secretary, ac-
cording to the provisions of law in that regard, and
the regulations of the Secretary established in pur-
suance thereof.
26 U.S.C. § 7422(a) (emphasis added). Section 6061(a)
states: “Except as otherwise provided . . . any return, state-
ment, or other document required to be made under any
provision of the internal revenue laws or regulations shall
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VENSURE HR, INC. v. US 9
be signed in accordance with forms or regulations pre-
scribed by the Secretary.” Id. § 6061(a) (emphasis added).
And § 6065 states: “Except as otherwise provided by the
Secretary, any return, declaration, statement, or other doc-
ument required to be made under any provision of the in-
ternal revenue laws or regulations shall contain or be
verified by a written declaration that it is made under the
penalties of perjury.” Id. § 6065 (emphasis added).
In Brown, we concluded that these provisions “impose
a default rule that individual taxpayers must personally
sign and verify their income tax refund claims.” 22 F.4th
at 1012. In light of these statutes and applicable imple-
menting regulations, we also concluded that taxpayers may
authorize a legal representative to certify the claims and
provide a valid power of attorney in place of the taxpayer
signature requirement. See id. at 1013. Brown refers to
these requirements as the “taxpayer signature and verifi-
cation requirements.” Id. “Because the taxpayer signature
and verification requirements derive from statute, the IRS
cannot waive those requirements.” Id. Notably, however,
these statutory provisions do not explain when, where, or
how a taxpayer (or a taxpayer’s authorized representative)
should comply with these requirements.
B
We next look to whether the “accompany” requirement
of § 301.6402-2(e)—i.e., the requirement that “a power of
attorney must accompany the claim”—is statutory or regu-
latory in nature. We conclude that it is a purely regulatory
requirement that is not reflected in the language of the rel-
evant statutory provisions. We then explain why we find
the government’s counterarguments unpersuasive.
1
The “accompany” requirement at issue presents a reg-
ulatory question of when, where, and how to file a power of
attorney—not whether one is required to be provided in
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VENSURE HR, INC. v. US 10
lieu of a taxpayer’s signature in the first place. While
Brown explained that the latter question is statutory, it did
not address the former. Because, as explained below, the
statutory provisions do not speak to the when, where, and
how of filing a power of attorney, we conclude that the “ac-
company” requirement is regulatory and thus waivable.
We are unaware of any relevant statutory provision
that establishes requirements for when, where, and how to
file a power of attorney with the IRS. Nothing in the stat-
utory provisions requires a specific mode of attachment or
use of a specific electronic filing system like CAF. Nothing
in the statutory provisions indicates that satisfaction of the
“signature and verification requirement” must be com-
pleted one way for tax returns and another way for tax re-
fund claims. And nothing in the regulatory text suggests
that the “accompany” requirement echoes the statutory re-
quirements, as was the case in Brown. See 22 F.4th
at 1013. Instead, the statutory provisions reflect a single
signature and verification requirement—i.e., that the tax
forms must be signed and verified by the taxpayer or a per-
son with power of attorney.
Rather than appearing in a statutory provision, the re-
quirements for when, where, and how a power of attorney
may accompany a claim are grounded in sub-regulatory
IRS instructions and publications. For example,
§ 301.6042-2(e) requires that claims for credits or refund
must be accompanied by a power of attorney, but it never
defines “accompany.” The relevant instructions for filing a
tax refund (using Form 843) states that “Form 2848, Power
of Attorney and Declaration of Representative, must be at-
tached.” S.App’x 2. Another provision addressing individ-
ual tax returns, 26 C.F.R. § 1.6012-1(a)(5), also requires
that the returns be “accompanied by a power of attorney.”
But it likewise never defines “accompany,” and the rele-
vant instructions state, “[i]f your return is signed by a rep-
resentative for you, you must have a power of attorney
attached . . . .” 1040 (and 1040-SR) Instructions (2023),
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VENSURE HR, INC. v. US 11
https://www.irs.gov/pub/irs-pdf/i1040gi.pdf. Both sets of
instructions suggest attachment is necessary, but they do
not define how a Form 2848 must be attached.
Indeed, the IRS admits that physical attachment or
concurrent attachment of Form 2848 is not necessary for
both tax returns and tax refund claims, despite both regu-
lations’ “accompany” requirement. Recall that the CAF
system “contain[s] information regarding the authority of
individuals appointed under powers of attorney.”
App’x 161. “Generally, the IRS records powers of attorney
on the CAF system.” App’x 161. But there are certain one-
time or specific-issue powers of attorney that the IRS does
not record on CAF. App’x 161. One such specific use is
Form 843 (again, the form at issue in this case). App’x 161.
According to the government, taxpayers may use CAF to
record Form 2848 for Form 1040 and satisfy the “accom-
pany” requirement but may not use CAF for recording
Form 2848 for Form 843 to satisfy the “accompany” re-
quirement. Oral Arg. at 23:37–24:25; see also id. at 29:16–
30:08. Thus, despite both regulations requiring a power of
attorney to “accompany” the claims and both instructions
suggesting that attachment is necessary, the IRS proce-
dures require physical or concurrent attachment for Form
843 but not Form 1040. In other words, according to the
IRS, “accompany” in one circumstance means only physi-
cal, concurrent submission, while “accompany” in a sepa-
rate circumstance means either physical, concurrent
submission or uploading to CAF. This example highlights
that the IRS has created procedures to answer the when,
where, and how question derived from IRS instructions,
publications, and limitations of CAF—not an explicit stat-
utory demand. See id. at 32:48–33:09. And the incon-
sistent implementation of the when, where, and how of
filing a power of attorney is not reflected in the statutory
language.
Thus, beyond the statutory requirement to supply a
power of attorney when the taxpayer is not signing a tax
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VENSURE HR, INC. v. US 12
form (as discussed in Brown), the remainder of the “accom-
pany” requirement regarding when, where, and how a tax-
payer files a power of attorney is a “detailed administrative
regulation[],” rather than an explicit statutory mandate.
See Angelus Milling, 325 U.S. at 296. Therefore, when the
IRS fails to apply this regulatory requirement in respond-
ing to a claim for refund, and instead addresses a claim on
its merits, the “accompany” requirement may be waived.
2
The government’s insistence that “accompany” is stat-
utory in nature is undermined by what appears to be de-
sign choices between the filing requirements of different
tax forms and a failure to connect these choices to an ex-
plicit statutory requirement.
For example, the government argues that “CAF could
not have substituted for a Form 2848 that was physically
attached to Vensure’s refund claims” essentially because
“[n]ot all authorizations can be recorded in the CAF. . . .
CAF does not track authorizations for refund claims filed
on Form 843.” Appellee’s Br. 28, 30. While the IRS may
have its purposes for designing such a system, its basis for
determining when physical attachment is required and
when it is not (e.g., when its system cannot and can record
the authorization) is unconnected to an “explicit statutory
requirement[].” Angelus Milling, 325 U.S. at 296.
Additionally, when asked at oral argument why a CAF
filing satisfies the “accompany” requirement for a Form
1040, the government’s response almost entirely relied on
(1) how to properly execute a Form 2848, and (2) the CAF
system’s ability to track authorizations. See Oral Arg.
at 30:13–47. But when asked why a CAF filing would not
satisfy the “accompany” requirement for a Form 843, the
government responded that (1) the actual power of attor-
ney form would be offsite or destroyed and (2) “CAF doesn’t
track authorizations for Form 843.” Id. at 30:47–31:59.
When asked why there was a difference in treatment
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VENSURE HR, INC. v. US 13
between Forms 1040 and Forms 843, the government re-
sponded that it is because Form 2848 has specific fields
that, if properly filled out, would be coded into CAF for a
Form 1040 but not a Form 843. See id. at 31:58–32:48. The
government’s attempt at a basis for such a distinction—
that it is a “function of volume” of each type of claim filed—
also has no grounding in an explicit statutory requirement.
See id. at 35:10–30.
At bottom, the IRS’s prerogative to design systems and
processes that suit its needs does not transform regulations
into statutory provisions.
C
Our conclusion here is not contrary to Brown. The gov-
ernment places significant weight on Brown’s statement
that “a taxpayer must satisfy the statutory default rule or
else comply strictly with the implementing regulations.”
Appellee’s Br. 19 (quoting Brown, 22 F.4th at 1013). While
we recognize that this sentence, standing alone, may ap-
pear to elevate to statutory status every IRS regulation ad-
dressing signature and verification requirements, we do
not agree such a broad interpretation of this single sen-
tence is appropriate. To agree with such an interpretation
would place Brown in conflict with the Supreme Court’s de-
cision in Angelus Milling.
As has been discussed throughout this opinion, Ange-
lus Milling distinguished between “explicit statutory re-
quirements” and “detailed administrative regulations.”
325 U.S. at 296. To wholesale interpret all regulations as-
sociated with signature and verification as statutory would
disregard this distinction and elevate all regulations on
this subject matter to a statutory requirement. The statu-
tory text here simply cannot support that treatment.
Additionally, the issue in Brown was different from the
issue before us. In Brown, there was no discussion of the
regulation at issue here, merely a single citation to
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VENSURE HR, INC. v. US 14
§ 301.6402-2(e). 22 F.4th at 1013. Further, the facts there
were wholly different because “[t]he Browns admit[ted]
that they neither signed their refund claims nor tendered
powers of attorney to permit their tax preparer to sign the
claims on their behalf.” Id. at 1012.6 And Brown stated
that it dealt “[t]here only with the facts presented to us,
relating to a return that is both unsigned by the taxpayers
and not accompanied by a power of attorney.” Id. at 1013.
In Brown, “not accompanied” meant a total absence of a
power of attorney.7 Id. at 1012–13. That is different from
the circumstances here where Vensure filed multiple pow-
ers of attorney purporting to cover the penalty-refund
claims at issue through its two Forms 2848 filed in 2015.
Thus, Brown’s instruction to “satisfy the statutory default
rule or else comply strictly with the implementing regula-
tions” was limited to the requirement to supply a valid
power of attorney, not when, where, and how to file one.
6 The government notes that there was a power of
attorney filed in Brown. Appellee’s Br. 22. But that was
not a valid power of attorney because it was signed by the
person being granted the power of attorney, not the tax-
payer—i.e., the person assigning the power of attorney was
the person being granted the power of attorney. Brown v.
United States, 151 Fed. Cl. 530, 532 (2020). Nowhere had
the taxpayer authorized a legal representative to file the
claims on the taxpayer’s behalf. Therefore, in Brown, the
taxpayers conceded that they had no valid power of attor-
ney.7 The government disagrees that Brown’s use of “ac-
companied” was so narrow, at least in part because the
opinion also includes suggestions of “append[ing]” or “at-
tach[ing]” a power of attorney to the claims. See 22 F.4th
at 1010, 1012. But these passing references are merely
dicta.
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VENSURE HR, INC. v. US 15
II
Having determined that the “accompany” requirement
is regulatory, two fact-based questions remain: (1) whether
Vensure’s powers of attorney as filed are sufficient to au-
thorize an agent to execute its penalty-refund claims and
(2) whether the IRS waived the “accompany” requirement
in this case. We remand these questions of fact to the Court
of Federal Claims to determine in the first instance.
A
The government raises a question as to whether the
powers of attorney at issue indeed cover the proper scope
of representation due to purported defects with the Forms
2848. On remand, the government can raise these alleged
defects with the Court of Federal Claims (subject to that
court’s view of whether the arguments have been ade-
quately preserved). To the extent that any alleged defects
are directed only to the when, where, and how of filing a
power of attorney, such defects likely would not demon-
strate an unmet statutory requirement and, instead, would
implicate only regulatory requirements or sub-regulatory
instructions. But to the extent the defects are such that
Vensure has failed outright to grant Mr. Sheldon authority
to represent it before the IRS to execute the penalty-refund
claims at issue, then no valid power of attorney exists and
Vensure is, like the Browns, left in violation of the signa-
ture and verification requirements necessary to “duly filed”
a claim under § 7422(a). See Brown, 22 F.4th at 1013.
B
Assuming a valid power of attorney was filed with the
IRS to cover the scope of representation for the penalty-re-
fund claims, then the Court of Federal Claims must deter-
mine whether the “accompany” requirement was in fact
waived here. When the IRS “dispense[s] with the formal
requirements of a claim by investigating its merits,” regu-
latory requirements may be waived. Angelus Milling, 325
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VENSURE HR, INC. v. US 16
U.S. at 296; see also id. at 297 (“If the Commissioner
chooses not to stand on his own formal or detailed require-
ments, it would be making an empty abstraction, and not
a practical safeguard, of a regulation to allow the Commis-
sioner to invoke technical objections after he has investi-
gated the merits of a claim and taken action upon it.”).
Angelus Milling’s waiver doctrine applies when
“(1) there is clear evidence that the Commissioner under-
stood the claim that was made, even though there was a
departure in form in the submission, (2) it is unmistakable
that the Commissioner dispensed with the formal require-
ments and examined the claim, and (3) the Commissioner
took action upon the claim.” Brown, 22 F.4th at 1013 (cit-
ing Angelus Milling, 325 U.S. at 297–98). This three-part
test contains underlying factual questions, which we will
not undertake for the first time on appellate review. We
leave to the Court of Federal Claims to decide this issue (if
necessary) on remand.
C ONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
vacate the Court of Federal Claims’ prior determination
that Vensure’s claims were not “duly filed” under § 7422(a)
and remand for further proceedings consistent with this
opinion.
VACATED AND REMANDED
C OSTS
No costs.
Case: 23-1640 Document: 43 Page: 16 Filed: 10/04/2024

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