throbber
1
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` Cite as: 571 U. S. ____ (2013)
`
`
`Per Curiam
`SUPREME COURT OF THE UNITED STATES
`FORD MOTOR COMPANY v. UNITED STATES
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
`
`
`No. 13–113. Decided December 2, 2013
`
` PER CURIAM.
`
`When a taxpayer overpays his taxes, he is generally
`entitled to interest from the Government for the period
`between the payment and the ultimate refund. See 26
`U. S. C. §6611(a). That interest begins to run “from the
`date of overpayment.” §§6611(b)(1), (b)(2). But the Code
`does not define “the date of overpayment.”
`
`In this case, after the Internal Revenue Service advised
`Ford Motor Company that it had underpaid its taxes from
`1983 until 1989, Ford remitted a series of deposits to the
`IRS totaling $875 million. Those deposits stopped the ac-
`crual of interest that Ford would otherwise owe once the
`audits were completed and the amount of its underpay-
`ment was finally determined. See §6601; Rev. Proc. 84–
`58, 1984–2 Cum. Bull. 501. Later, Ford requested that the
`IRS treat the deposits as advance payments of the addi-
`tional tax that Ford owed. Eventually the parties deter-
`mined that Ford had overpaid its taxes in the relevant
`years, thereby entitling Ford to a return of the over-
`payment as well as interest. But the parties disagreed
`about when the interest began to run under 26 U. S. C.
`§6611(b)(1). Ford argued that “the date of overpayment”
`was the date that it first remitted the deposits to the IRS.
`Ibid. The Government countered that the date of over-
`
`
`payment was the date that Ford requested that the IRS
`treat the remittances as payments of tax. The difference
`between the parties’ competing interpretations of §6611(b)
`
`is worth some $445 million.
`
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`Ford sued the Government in Federal District Court,
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` FORD MOTOR CO. v. UNITED STATES
`
`
`Per Curiam
`asserting jurisdiction under 28 U. S. C. §1346(a)(1). The
`Government did not contest the court’s jurisdiction. See
`Brief in Opposition 3, n. 3. The District Court accepted
`the Government’s construction of §6611(b) and granted its
`motion for judgment on the pleadings. A panel of the
`Court of Appeals for the Sixth Circuit affirmed, concluding
`that §6611 is a waiver of sovereign immunity that must be
`construed strictly in favor of the Government. 508 Fed.
`Appx. 506 (2012).
`
`Ford sought certiorari, arguing that the Sixth Circuit
`was wrong to give §6611 a strict construction. In Ford’s
`view, it is 28 U. S. C. §1346—not §6611—that waives the
`
`Government’s immunity from this suit, and §6611(b) is a
`
`
`substantive provision that should not be construed strictly.
`See Gómez-Pérez v. Potter, 553 U. S. 474, 491 (2008);
`United States v. White Mountain Apache Tribe, 537 U. S.
`465, 472–473 (2003). In its response to Ford’s petition for
`certiorari, however, the Government contended for the
`first time that §1346(a)(1) does not apply at all to this suit;
`it argues that the only basis for jurisdiction, and “the only
`general waiver of sovereign immunity that encompasses
`[Ford’s] claim,” is the Tucker Act, 28 U. S. C. §1491(a).
`Brief in Opposition 3, n. 3. Although the Government
`acquiesced in jurisdiction in the lower courts, if the Gov-
`ernment is now correct that the Tucker Act applies to this
`suit, jurisdiction over this case was proper only in the
`United States Court of Federal Claims. See §1491(a).
`
`This Court “is one of final review, ‘not of first view.’ ”
`
`FCC v. Fox Television Stations, Inc., 556 U. S. 502, 529
`(2009) (quoting Cutter v. Wilkinson, 544 U. S. 709, 718,
`n. 7 (2005)). The Sixth Circuit should have the first oppor-
`tunity to consider the Government’s new contention with
`respect to jurisdiction in this case. Depending on that
`
`court’s answer, it may also consider what impact, if any,
`the jurisdictional determination has on the merits issues,
`
`
`especially whether or not §6611 is a waiver of sovereign
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`It is so ordered.
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` Cite as: 571 U. S. ____ (2013)
`
`
`Per Curiam
`immunity that should be construed strictly.
`
`
`The petition for certiorari is granted, the judgment of
`the Sixth Circuit is vacated, and the case is remanded for
`further proceedings.
`
`3

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