R.h. Donnelley Corporation v.  United States of America

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 R.H. DONNELLEY CORPORATION,
Plaintiff-Appellant,
v. No. 10-1365 
UNITED STATES OF AMERICA,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:08-cv-00501-BO)
Argued: January 26, 2011
Decided: March 31, 2011
Before WILKINSON and KEENAN, Circuit Judges,
and Irene C. BERGER, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Keenan and Judge Berger joined.
COUNSEL
ARGUED: William L. Goldman, MCDERMOTT, WILL &
EMERY, LLP, Washington, D.C., for Appellant. Arthur
Thomas Catterall, UNITED STATES DEPARTMENT OF

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JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Robin L. Greenhouse, MCDERMOTT, WILL & EMERY,
LLP, Washington, D.C.; Joseph H. Selby, MCDERMOTT,
WILL & EMERY, LLP, Boston, Massachusetts; Christopher
G. Smith, SMITH ANDERSON BLOUNT DORSETT
MITCHELL & JERNIGAN, LLP, Raleigh, North Carolina,
for Appellant. John A. DiCicco, Acting Assistant Attorney
General, Kenneth L. Greene, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C.; George E. B. Hold-
ing, United States Attorney, Raleigh, North Carolina, for
Appellee.
OPINION
WILKINSON, Circuit Judge:
Just two days before the statute of limitations barred the
Internal Revenue Service from assessing additional taxes for
1994, the R.H. Donnelley Corporation claimed refunds for
1991 and 1992 based on tax credits carried back from 1994.
The statute of limitations then expired. After an investigation
revealed that the taxpayer had so underreported its 1994
income that there was sufficient tax liability to use up all of
the credits in that year, the IRS denied the refund claim. We
agree with the district court that the IRS can recalculate tax
liability for a year beyond the statute of limitations in order
to determine whether excess tax credits can be carried back to
previous years to support a refund.
I.
On December 29, 1999, the R.H. Donnelley Corporation
filed timely refund claims with the Internal Revenue Service
for the 1991 and 1992 tax years. Those refund claims
depended on tax credits that Donnelley sought to carry back
from 1994 to create a retroactive overpayment. In particular,
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Donnelley had $8,048,374 in excess foreign tax credits that it
sought to carry back to 1992 and $3,080,395 in excess
research credits—a species of the general business cred-
it—that it sought to carry back to 1991.
In response to Donnelley’s refund claims, the IRS con-
ducted an audit and found that a large, unrelated deduction
claimed by Donnelley in 1994 was improper. The IRS disal-
lowed that deduction and, in 2006, notified Donnelley that the
agency had calculated, but not assessed, a tax deficiency for
1994 of more than $43 million. The IRS did not seek to col-
lect Donnelley’s additional tax liability for that year because
the statute of limitations for the assessment and collection of
additional taxes expired on December 31, 1999—just two
days after Donnelley filed its refund claim. See I.R.C.
§ 6501(a). Due to the recalculation of Donnelley’s 1994 tax
liability, however, the IRS asserted that all of Donnelley’s
remaining 1994 credits could be and must be used up in 1994.
As a result, there were no excess credits to be carried back to
1991 and 1992, and there was thus no overpayment that
would justify a refund.
Donnelley did not challenge the disallowance of the deduc-
tion. Instead, it disputed that the IRS could recalculate the
amount of the excess credits from 1994. Donnelley timely
filed suit on its refund claims in the Eastern District of North
Carolina in 2008. The district court subsequently granted the
United States’s motion for summary judgment and dismissed
the refund claim. Donnelley now appeals.
II.
Though Donnelley asserts that the IRS may not recalculate
its 1994 taxes to defeat a refund claim for 1991 and 1992, we
find this claim untenable in light of the Supreme Court’s long-
standing recognition that the IRS may recompute tax liabili-
ties in response to a refund claim. See Lewis v. Reynolds, 284
U.S. 281 (1932). In Lewis, the IRS timely audited an income
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tax return and disallowed all deductions except one for attor-
ney fees. Despite paying the resulting deficiency, the taxpayer
continued to believe that a deduction for state taxes was
proper and so sought a refund. Id. at 282.
The IRS denied the refund claim because upon further
review, the attorney fee deduction, which was larger than the
state tax deduction, was in fact improper. Though the statute
of limitations prevented the IRS from actually collecting the
resulting deficiency, the IRS asserted that the deficiency
remained and so the taxpayer was not entitled to a refund. Id.
The Supreme Court agreed. "[T]he ultimate question" in a
refund case "is whether the taxpayer has overpaid his tax.
This involves a redetermination of the entire tax liability." Id.
at 283 (quoting Lewis v. Reynolds, 48 F.2d 515, 516 (10th Cir.
1931)). The Court noted that "[w]hile no new assessment can
be made, after the bar of the statute [of limitations] has fallen,
the taxpayer, nevertheless, is not entitled to a refund unless he
has overpaid his tax." Id. Thus even when the IRS may not
collect a deficiency, it may "retain payments already received
when they do not exceed the amount which might have been
properly assessed and demanded." Id.
Donnelley acknowledges that the rule of Lewis "is poten-
tially applicable here," but contends that Lewis is distinguish-
able because it only permits the IRS to raise "issues arising in
that same tax year as an offset to the refund claimed." Brief
of Appellant at 23. Under this theory, the IRS could challenge
a deduction from 1991 or 1992, the years for which Donnel-
ley claims a refund. The agency could not, however, re-
examine whether there were excess credits in 1994 to be car-
ried back to 1991 and 1992.
This cramped reading of Lewis is unpersuasive. Tax years
are not insular units, and the Code often allows taxpayers to
shift tax items to other years. See, e.g., I.R.C. § 39 (carryback
and carryover of unused business credits); I.R.C. § 904(c)
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(carryback and carryover of excess foreign tax credits). Lewis
rested on a sensible rationale—"[a]n overpayment must
appear before refund is authorized," 284 U.S. at 283—that
sometimes requires looking into other tax years. The Tax
Court too has found that the IRS has authority to recalculate
all tax years necessary to determine whether there was an
overpayment in the year of the claimed refund, so long as it
does not assess additional taxes as a prelude to collecting
them. See Hill v. Comm’r, 95 T.C. 437, 443 (1990); Lone
Manor Farms, Inc. v. Comm’r, 61 T.C. 436, 440-41 (1974),
aff’d without opinion 510 F.2d 970 (3d Cir. 1975)).
In this case, whether there were overpayments in 1991 and
1992 hinges on whether Donnelley had excess foreign tax and
business credits to carry back from 1994. The IRS properly
acknowledges that "Lewis does not permit the IRS to defend
against a refund claim for one year with an unassessable (i.e.
time-barred) understatement of tax from a different year."
Brief of Appellee at 25; see also Philadelphia & Reading
Corp. v. United States, 944 F.2d 1063, 1075 (3d Cir. 1991)
("Taxes fairly due but not properly assessed for one year can-
not be set-off against refunds due for another year."). For
example, the IRS could not on the authority of Lewis rebut
Donnelley’s refund claims for 1991 and 1992 by noting, with-
out more, that Donnelley had underpaid its taxes in 1989. But
Lewis must permit the IRS to recalculate tax items from other
years when those items are necessary to determine the correct
tax in the year of the claimed refund. As the district court
noted, "Any other result would allow a taxpayer to benefit
twice from [its] underpayment." R.H. Donnelley Corp. v.
United States, 684 F. Supp. 2d 672, 674 (E.D.N.C. 2010).
III.
Donnelley attempts to circumvent Lewis using this court’s
decision in Estate of Michael v. Lullo, 173 F.3d 503 (4th Cir.
1999). But Estate of Michael only confirms the correct under-
standing of Lewis. There, after the taxpayer submitted proof
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of its entitlement to a tax credit, after it paid all taxes that had
been assessed, and after the statute of limitations expired, the
IRS sought to collect additional taxes. The IRS claimed,
improbably, that Lewis justified its attempt to collect a defi-
ciency. This court was not convinced: "While Lewis does
allow the IRS to refuse certain refunds, it does not allow the
IRS’s collection of any additional sum after the limitations
period has expired." Id. at 508 (internal quotation omitted).
Estate of Michael thus rebuffed the IRS’s attempt to expand
Lewis well beyond its natural borders.
Donnelley, however, strains to read Estate of Michael to
justify its own attempt to escape the force of Lewis altogether.
Estate of Michael noted at one point that "the statute of limita-
tions not only prevents the IRS from assessing these taxes in
the future, it extinguishes potential liability for all such time-
barred taxes." Id. at 507 n.5. Donnelley would now use this
unremarkable statement to hamstring the IRS’s efforts to
defend against all sorts of refund claims. In particular, Don-
nelley supposes that all "potential liability" for additional
taxes it might have owed in 1994—a "liability" that in this
case would have negated the credits carried back to 1991 and
1992 to create a refund—was "extinguished" after the statute
of limitations expired. On this reading, which would do vio-
lence to the Supreme Court’s clear holding in Lewis, "it is
irrelevant whether this is a tax refund case or a tax collection
case." Brief of Appellant at 22.
That is far from what Estate of Michael held. The expira-
tion of the statute of limitations does extinguish potential lia-
bility in the sense that the taxpayer has no obligation to pay
any additional taxes that the IRS tries to collect. Indeed,
Estate of Michael rebuffed the IRS’s improper attempt to col-
lect additional taxes in that case after the statute of limitations
had expired. But Estate of Michael does not stand for the
proposition that the IRS may not re-examine tax years inter-
twined with a claim for a refund. The opinion repeatedly
emphasized the difference between collection and refund, not-
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ing that "Lewis simply provided the IRS with a ‘shield’ it
could use to ward-off refund suits; it did not forge a ‘sword’
with which the IRS could assess or collect additional taxes,"
id. at 508, and that "‘[a] deficiency determination, by which
the IRS seeks to establish a taxpayer’s additional tax liability,
is patently different from a refund determination, by which
the taxpayer seeks repayment or credit from the IRS,’" id.
(quoting Bachner v. Comm’r, 81 F.3d 1274, 1277 (3d Cir.
1996)).
In this case, the IRS is using Lewis properly as a "shield"
rather than a "sword." It seeks to collect not one additional
penny from Donnelley. Instead it seeks to defend the fisc
against Donnelley’s bold claim for an $11 million refund.
Estate of Michael, which recognized again that the IRS may
"retain payments already received when they do not exceed
the amount which might have been properly assessed and
demanded," id. at 509 n.8 (quoting Lewis, 284 U.S. at 283),
validates the government’s approach in this case.
IV.
Donnelley maintains that even if Lewis and Estate of
Michael support the IRS’s ability to recalculate taxes to defeat
refund claims in general, the Internal Revenue Code restricts
the IRS when it comes to recalculating the foreign tax and
business credit limitations for 1994 that determine whether
there are excess credits to carry back to 1991 and 1992.
A.
Some background is necessary to understand Donnelley’s
claim. For starters, the Code allows taxpayers to reduce their
tax liability dollar-for-dollar by claiming credits. Such credits
are available for foreign income taxes paid, I.R.C. § 901(a),
and for certain research expenses, I.R.C. § 41, which are
included in the general business credit, I.R.C. § 38(b)(4).
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One’s taxes are not necessarily offset, however, by the full
amount of the credits accumulated in a year. Sections 904(a)
and 38(c)(1) limit the amount of the credit that can be applied
to any particular taxable year under I.R.C. §§ 901(a) or 38(a),
respectively. Those provisions operate such that the greater a
taxpayer’s tax liability in any given year, the higher its credit
limitation may be, and the more of its credits may be used up
in that year.
For example, I.R.C. § 904(a) states, "The total amount of
the credit taken under section 901(a) shall not exceed the
same proportion of the tax against which such credit is taken
which the taxpayer’s taxable income from sources without the
United States (but not in excess of the taxpayer’s entire tax-
able income) bears to his entire taxable income for the same
taxable year." This formula, which is meant to restrict the tax
credit to what the U.S. tax would have been on the taxpayer’s
foreign-source income, can be restated as follows:
Foreign Tax Credit Limitation = (U.S. Tax Liability)
x ((Foreign-Source Taxable Income) / (Total Tax-
able Income))
See H.R. Rep. No. 86-1358 (1960); S. Rep. No. 86-1393
(1960). When a taxpayer’s foreign tax credits exceed the for-
eign tax credit limitation, the excess credits "shall be" carried
back to previous years where possible. See I.R.C. § 904(c);
see also I.R.C. § 39(a) (carryback and carryover of unused
business credits).*
*Under current law, excess foreign tax and business credits can be car-
ried back only one year. See I.R.C. §§ 904(c) & 39(a). Prior to 2004, how-
ever, foreign tax credits could be carried back up to two years, see Pub.
L. No. 108-357, § 417(a), and prior to 1997 business credits could be car-
ried back up to three years, see Pub. L. No. 105-34, § 1083(a)(1).
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B.
Donnelley relies primarily on § 904(a) to argue that it has
excess credits to carry back from 1994. In Donnelley’s view,
the text of § 904(a) prevents the IRS from recalculating the
foreign tax credit limitation in response to a refund suit. Spe-
cifically, Donnelley contends that in § 904(a)’s phrase for
U.S. tax liability—"the tax against which such credit is
taken,"—the word "tax" refers solely to the tax that the IRS
could actually collect before the statute of limitations expired,
because a "credit can only be ‘taken’ ‘against’ a real tax that
exists." Brief of Appellant at 15. Therefore, the tax credit limi-
tation "must be calculated using the amount of tax that, but
for the credits, the taxpayer actually owes," rather than a tax
that is correctly calculated but uncollectible due to an expired
statute of limitations. Id. On this view, Donnelley’s foreign
tax credit limitation for 1994 was forever fixed at an artifi-
cially low level when the statute of limitations elapsed, so for-
eign tax credits in excess of that credit limitation must be
carried back to 1992. But this approach has several difficul-
ties.
C.
For starters, only wishful thinking could find support for
that reading in the text of the Code. Donnelley insists, in
entirely conclusory fashion, that the statutory language is air-
tight: "a foreign tax credit simply cannot be ‘taken’ ‘against’
a tax that does not exist and that the taxpayer does not owe."
Id. at 16. But this conclusion requires us to discover secret
meaning in a statute that, while complex, does not speak in
tongues. Congress has given no indication that there is any-
thing unusual about § 904(a) such that the foreign tax credit
limitation is to be computed using only the timely assessed
tax. In the absence of any evidence to the contrary, we cannot
conclude that Congress has eliminated the Commissioner’s
authority to recalculate this aspect of a refund claimant’s
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taxes, an authority which "is necessarily implied" in the Code.
Lewis, 284 U.S. at 283.
Moreover, Donnelley’s assertion that the expiration of the
statute of limitations causes a tax not to exist seriously over-
states the matter. Lewis makes clear that just because a tax
cannot be assessed and collected does not mean that it ceases
to play any role. The taxpayer would not "owe" such a time-
barred tax insofar as the IRS could not collect it, but the mere
existence of an uncollectible tax deficiency nevertheless could
be a defense to a refund claim if it meant that the taxpayer had
not actually overpaid his taxes. Donnelley contends that the
IRS, by recalculating the uncollected 1994 tax, "seeks to over-
ride the consequences of the expiration of the statute of limi-
tations," Brief of Appellant at 20, but it is Donnelley who
seeks to transmogrify the statute of limitations by extending
its force far beyond what was recognized in Lewis and Estate
of Michael.
D.
In addition, Donnelley’s approach would lead to the curi-
ous result that the IRS could not recalculate the foreign tax
credit limitation but could recalculate the credit itself. Don-
nelley correctly acknowledges that the IRS could recalculate
the credits at issue on the authority of Lewis, for it "could
scarcely object to the Government’s entitlement to challenge
whether those excess credits actually exist." Reply Brief of
Appellant at 6. Here, at least, Donnelley recognizes that the
Commissioner may recalculate tax items in a closed year
when those items are necessary to determine whether there is
an overpayment in the year of the claimed refund. But of
course the IRS has not sought to challenge the existence of
Donnelley’s 1994 foreign tax credits, instead challenging only
Donnelley’s artificially deflated foreign tax credit limitation,
which depends on an unrelated deduction that does not affect
the credits themselves.
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Donnelley simply offers no plausible reason why Congress
would allow the IRS to recalculate the credit of § 901 but not
the credit limitation of § 904(a). Though Donnelley places
great weight on the isolated words "tax against which such
credit is taken" in § 904(a), "we consider all the words
employed and do not review isolated phrases." United States
v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). For "‘[s]tatutory
construction is a holistic endeavor,’" and we therefore must
"evaluate the statutory language itself, the specific context in
which such statutory language is used, and the broader con-
text of the statute as a whole." Willenbring v. United States,
559 F.3d 225, 236 (4th Cir. 2009) (quoting Koons Buick Pon-
tiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004)). The foreign
tax credit of § 901 and the foreign tax credit limitation of
§ 904(a) are not merely part of the same statute, but form a
unified statutory scheme. See I.R.C. §§ 901(a) & (b) (noting
that the foreign tax credit is "subject to the limitation of sec-
tion 904"); I.R.C. § 904 (limiting the "total amount of the
credit taken under section 901(a)"). To calculate one with
restrictions not imposed on the other would be to fracture that
unity and to introduce additional complexity where Congress
desired neither.
E.
In addition to claiming that the foreign tax credit limitation
of § 904(a) must be calculated using only the timely assessed
tax, Donnelley asserts that a similar restriction applies to the
business credit limitation of § 38(c). That provision states that
the general business credit "allowed . . . for any taxable year
shall not exceed the excess (if any) of the taxpayer’s net
income tax over the greater of — (A) the tentative minimum
tax for the taxable year, or (B) 25 percent of so much of the
taxpayer’s net regular tax liability as exceeds $25,000." With-
out addressing the language of § 38(c) or offering any addi-
tional arguments, Donnelley contends that "[a]lthough the
wording is different, the statutory provisions governing the
carryover and carryback of general business credits are the
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same as the foreign tax credit provisions discussed above."
Brief of Appellant at 24. We see no reason to disagree: Sec-
tion 38(c) is like § 904(a) insofar as the Commissioner may
recalculate Donnelley’s business credit limitation for 1994 as
well as its foreign tax credit limitation.
V.
It takes real chutzpah for Donnelley to demand a refund
under these circumstances. Donnelley, by claiming a large
deduction in 1994 to which it was not entitled, substantially
understated its pre-credit income tax. It then received one sort
of windfall when the statute of limitations expired, preventing
the IRS from collecting any of the tax that Donnelley would
have owed if it had properly reported its net income. Donnel-
ley views this windfall as irrelevant to its entitlement to a
refund because "[a]ny benefit to Donnelley from the expira-
tion of the statute of limitations is . . . water already under the
bridge." Brief of Appellant at 19. As to Donnelley’s liability
for the collection of that underpaid amount, that may be true.
But Donnelley was not content merely to escape from its
tax liability in the first instance. It filed a refund claim two
days before the statute of limitations for the assessment of
1994 taxes expired, presumably counting on the fact that the
IRS could not investigate any underpayment in time to collect
it. That refund claim depended on credits that could be carried
back only because Donnelley had misreported its taxes in the
first place. It is true that the statute of limitations may protect
Donnelley from additional collection, but it does not give
Donnelley license to claim a second windfall in the form of
a refund. To claim otherwise is almost beyond belief.
Moreover, to validate such a claim would seriously restrict
the IRS’s ability to protect the public fisc. It bears repeating
that tax years are not insular units, and it is often necessary
to look to other tax years to determine the proper tax for any
given year. Indeed, the Code provides a dizzying array of
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credits and deductions that can be carried back to earlier years
or carried over to later years. See, e.g., I.R.C. § 39 (carryback
and carryover of unused business credits); I.R.C. § 172(b) (net
operating loss carrybacks and carryovers); I.R.C. § 469(b)
(carryover of passive activity losses); I.R.C. § 810(b) (life
insurance company operations loss carrybacks and car-
ryovers); I.R.C. § 904(c) (carryback and carryover of excess
foreign tax credits); I.R.C. § 1212 (capital loss carrybacks and
carryovers). But if Donnelley’s refund suit succeeded here,
then taxpayers who use those credits and deductions might be
tempted to underreport their income as well to take advantage
of a similar double windfall. We cannot sweeten the pot for
taxpayers who have not even paid all of their taxes in the rele-
vant years by allowing them a refund to top off their under-
payment.
VI.
No one is entitled a refund who has not actually overpaid
his taxes. This axiomatic observation, made first by the
Supreme Court in Lewis and recognized by this circuit in
Estate of Michael, defeats this taxpayer’s claim. Here, Don-
nelley has not overpaid its taxes, and we will not allow it to
reap where it has not sown. We accordingly affirm the judg-
ment of the district court.
AFFIRMED
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