107 F3d 19 United States v. V Turner

107 F.3d 19

79 A.F.T.R.2d 97-1340, 97-1 USTC P 50,277

UNITED STATES of America, Counter-Claimant/Appellee,
Frank V. TURNER, Carolyn Turner, Counter-Defendants Appellants.

No. 95-16922.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 13, 1997.*
Decided Feb. 19, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BRUNETTI, FERNANDEZ, and HAWKINS, Circuit Judges.

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Taxpayers Frank and Carolyn Turner appeal from the district court's order granting summary judgment for the United States on the Turners' refund claims for the 1988 and 1990 tax years and on the United States coutnerclaim for recovery of an erroneous refund for the 1989 tax year.


Appellants contend that the payments Mr. Turner received were excludable from gross income pursuant to 26 U.S.C. §§ 104(a)(3), 105(a) and 105(c). However, we agree with the district court's analysis that the payments were properly included in Mr. Turner's income. See District Court Order Granting Summary Judgment.


In addition, the government's counterclaim to recover the erroneous refund was filed within the statute of limitations. The government filed its counterclaim under 26 U.S.C. § 7405(b). The statute of limitations for that provision is provided by § 6532(b), which allows for recovery of an erroneous refund within 2 years after the making of such refund. See 26 U.S.C. § 6532(b). Here, the government granted the refund on March 29, 1993 and filed the counterclaim on November 23, 1994. Consequently, the applicable two-year statute of limitations does not bar the government's counterclaim.




The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3