UNITED STATES of America, Plaintiff, v. SOUTHLAND OIL COMPANY, Defendant., United States District Court, S.D. Mississippi, Jackson Division., 339 F.Supp.2d 764, No. CIV.A.3:03cv762BN., July 13, 2004

UNITED STATES of America, Plaintiff, v. SOUTHLAND OIL COMPANY, Defendant.

United States District Court, S.D. Mississippi, Jackson Division.

339 F.Supp.2d 764

No. CIV.A.3:03cv762BN.

July 13, 2004.

Bruce T. Russell, Washington, DC, Dunn Lampton, U.S. Attorney's Office, Gulfport, MS, for plaintiff.

C. Ted Sanderson, Copeland, Cook, Tay╜lor & Bush, Ridgeland, MS, for defendant.

OPINION AND ORDER

BARBOUR, District Judge.

This cause is before the Court on Defen╜dant's Motion for Summary Judgment. Having considered the Motion, Response, Rebuttal, attachments to each, as well as supporting and opposing authority, the Court finds that Defendant's Motion for Summary Judgment is not well taken and should be denied.

I. Background and Procedural History

Defendant Southland Oil Company (hereinafter "Southland") is a refiner and wholesale distributor of various petroleum products. As a wholesale distributor, De╜fendant purchases petroleum products from various suppliers in Mississippi and Louisiana and stores the petroleum prod╜ucts in several terminals throughout Mis╜sissippi.

Defendant contracted with James Nunn, a retail sales contractor doing business as Nunn Oil Co., Inc., to lease and indepen╜dently operate Defendant's bulk plant fa╜cility located in Kosciusko, Mississippi. Nunn leased and maintained the bulk plant facility, stored Defendant's gas and diesel products, and sold and distributed fuel to customers. As Nunn made sales of fuel to customers, Nunn paid Defendant by mak╜ing deposits into Defendant's bank ac╜count. Under Defendant's internal control practices, Nunn was required to prepare bank deposit reports showing the deposits and submit the reports to Defendant.

During the period from January 1998 through August 2001, Nunn engaged in a scheme whereby he made cash sales of fuel to customers whose sales were subject to federal excise taxes. Nunn apparently charged the federal excise tax to those customers. However, Nunn then repre╜sented to Defendant that these sales of fuel were made to governmental entities that were not subject to the federal excise tax. Defendant, relying on the reports submitted by Defendant, filed claims with the Internal Revenue Service (hereinafter the "IRS") for refunds of the excise taxes. Defendant received the refunds based on the claims submitted by Defendant.

In the fall of 2001, Defendant discovered Nunn's scheme and informed state and federal authorities, including the IRS. Nunn was prosecuted by the State of Mis╜sissippi, and he pled guilty to evasion of Mississippi excise taxes.

On June 2, 2003, the United States of America (hereinafter the "Government") filed this action for recovery of alleged erroneous refunds of certain federal gaso╜line excise taxes paid to Defendant by the IRS. On June 4, 2004, Defendant filed its Motion for Summary Judgment arguing that the claims of the Government are barred by the statute of limitations. This motion is now ripe for consideration.

II. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment "shall be rendered forthwith if the pleadings, depositions, an╜swers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving par╜ty is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The United States Supreme Court has held that this language "mandates the entry of summary judgment, after adequate time for discov╜ery and upon motion, against a party who fails to make a sufficient showing to estab╜lish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Moore v. Mississippi Val╜ley State Univ., 871 F.2d 545, 549 (5th Cir.1989); Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir.1988).

The party moving for summary judg╜ment bears the initial responsibility of in╜forming the district court of the basis for its motion and identifying those portions of the record in the case which it believes demonstrate the absence of a genuine is╜sue of material fact, Cetotex, 477 U.S. at 323, 106 S.Ct. 2548. The movant need not, however, support the motion with materi╜als that negate the opponent's claim. Id. As to issues on which the non-moving par╜ty has the burden of proof at trial, the moving party need only point to portions of the record that demonstrate an absence of evidence to support the non-moving par╜ty's claim. Id . at 323-24, 106 S.Ct. 2548. The non-moving party must then go be╜yond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548.

Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact ex╜ists. It is improper for the district court to "resolve factual disputes by weighing conflicting evidence, ... since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Summary judgment is also improp╜er where the court merely believes it un╜likely that the non-moving party will pre╜vail at trial. National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir.1962).

III. Analysis

Under 26 U.S.C. ╖ 7405, the Gov╜ernment has the authority to bring a civil action to recover any portion of a tax refund which has been erroneously refund╜ed. However, 26 U.S.C. ╖ 6532(b) pro╜vides that

[r]ecovery of an erroneous refund by suit under section 7405 shall be allowed only if such suit is begun within 2 years after the making of such refund, except that such suit may be brought at any time within 5 years from the making of the refund if it appears that any part of the refund was induced by fraud or mis╜representation of a material fact.

Defendant argues that the claims of the Government for refunds made prior to June 2001 are barred by the 2 year statute of limitations because Defendant did not induce any of the refunds by fraud or misrepresentation of material facts. De╜fendant argues that any fraud committed by Nunn cannot be imputed to Defendant for purposes of ╖ 6532(b). The Govern╜ment however argues that it is entitled to the 5 year limitation period under ╖ 6532(b) because the refund was induced by fraud or misrepresentation of a materi╜al fact.

In interpreting 26 U.S.C. ╖ 6532(b), the Court notes that the United States Supreme Court has repeatedly held that "[s]tatutes of limitations sought to be applied to bar rights of the government, must receive a strict construction in favor of the government." See Badaracco v. Comm'r , 464 U.S. 386, 392, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) (quoting Lucia v. United States, 474 F.2d 565, 570 (5th Cir. 1973) (stating that "limitations statutes barring the collection of taxes otherwise due and unpaid are strictly construed in favor of the Government.")). Under a plain reading of ╖ 6532(b), Defendant need not have "committed" fraud or have fraud "imputed" to it for the Government to have the benefit of the longer period to investi╜gate and recover erroneous refunds. 26 U.S.C. ╖ 6532(b) does not require that De╜fendant or any agent of Defendant be the one who committed the fraud or misrepre╜sentation. In this case, Nunn engaged in a fraud upon Defendant that caused De╜fendant to misrepresent the amount of tax-exempt sales of gasoline to the IRS. Any fraud committed by Nunn does not have to be imputed to Defendant in order to ex╜tend the statute of limitations to 5 years. Therefore, the Court finds that the Gov╜ernment is entitled to the 5 year statute of limitations and that the Court must deny Defendant's Motion for Summary Judg╜ment.

IV. Conclusion

Based on the holdings presented above.

IT IS THEREFORE ORDERED that Defendant's Motion for Summary Judg╜ment [21-1] is hereby denied.

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