United States v. Morris Cooper-Smith, 439 F.2d 1095, 2d Cir. (1971)
United States v. Morris Cooper-Smith, 439 F.2d 1095, 2d Cir. (1971)
United States v. Morris Cooper-Smith, 439 F.2d 1095, 2d Cir. (1971)
2d 1095
71-1 USTC P 9311
The sole issue raised on appeal is whether the statute of limitations bars the
government's recovery. On May 6, 1960, Cooper-Smith was assessed for these
deficiencies. Section 6502(a) of the Internal Revenue Code of 1954 provides
that an action for collection of taxes must be commenced within six years of
assessment unless otherwise agreed upon in writing by the parties before this
Under the agreement quoted above, the government contends, and Judge
Bartels held, that the statute of limitations did not run until May 28, 1968, and
therefore the suit was timely brought. It argues that the statute of limitations did
not start to run again until the offer had been rejected. Since there was six
months and a few days remaining to file suit at the time of the offer, and the
agreement provided for an extra year for the government to commence this
action, the statute of limitations did not run until over a year and six months
from November 17, 1966, the date the offer was rejected. Cooper-Smith, on the
other hand, contends that under the literal language of the agreement, the
statute of limitations might be deemed to start running again on the date the last
installment was paid, August 3, 1966, regardless of the government's failure to
act on the offer. Under this interpretation, the limitations period would have
expired on February 14, 1968, before this action was commenced. Taxpayer
argues that any ambiguity in the agreement should be interpreted against the
government, especially since the government prepared the printed form.
Alternatively, he claims that the government failed to reject his offer in 'due
course' as provided in the agreement, and consequently the government should
be precluded from insisting upon the longer limitations period provided therein.
For the reasons stated by Judge Bartels below, 310 F.Supp. 479
(E.D.N.Y.1970), we agree that this action is timely, and affirm the order of the
district court.