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12/08/89 Melvin A. Gardner, v. United States

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


December 8, 1989

MELVIN A. GARDNER, APPELLANT

v.

UNITED STATES, APPELLEE

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1989.CDC.377

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

JUDGMENT

This case was considered on appeal from the United States District Court for the District of Columbia and on the briefs filed by the parties and arguments by counsel. The issues have been accorded full consideration by the court and occasion no need for a published opinion. See D.C. Cir. Rule 14(c).

We affirm the district court's ruling that appellant failed to state a claim upon which relief could be granted because his incomplete application for a tax refund did not constitute a proper claim. To be sufficient, a refund claim must "set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof." 26 C.F.R. 301.6402-2(b)(1). Appellant did not set forth any facts to identify or support his claim in either his application or his complaint. The Internal Revenue Code sections he cites contain several bases for obtaining carryback refunds, yet the application does not indicate which--if any--of these provisions he relies upon. Regardless of the desirability of having the IRS send its forms to alert applicants to shortcomings in their applications, we expressly reject that it is required to do so. See, e.g., West v. United States, 397 F.2d 381, 383 (7th Cir. 1968). We instruct the district court in considering the 48 similar claims brought by appellant's counsel that a generalized claim does not suffice. It is

ORDERED and ADJUDGED that the order of the district court be affirmed. It is

FURTHER ORDERED, by the Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15(b)(2).

PER CURIAM DECISION

19891208

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