It was a Tuesday in 2016, if memory serves, when your mother called you to let you know about the unfortunate events that had beset your Mainer family the week prior. After some brief research (thanks, Google), you discovered that the tornado was the first to hit York County, Maine in nearly a decade, and it was the first major tornado since October 10, 1966.
If a tornado were going to hit Biddeford, somehow Uncle Bill and Cousin Elmer would featured prominently in the story. Sure enough, it took little more than a quick look at the Portland Press Herald to see your relations staring back at you like does in the spotlight of Bill’s pickup truck. Through some modicum of divine intervention, it took Bill and Elmer nearly a year to ask you about the tax consequences of the tornado (though they had bothered you about any number of legal questions in the interim).
Bill, it turns out, timely filed an income tax return for 2016, but he failed to claim a casualty loss on his return. He now wanted to file an amended return and claim a substantial refund for the damage “that damn twister” did to his beloved emu farm.
Elmer, on the other hand, had sworn to file a federal income tax return once Clinton was sworn in, and—for better or worse—he was a man of his word. Nonetheless, he wants “what’s owed” to him, too. Begrudgingly providing a bit more context, it turns out that the IRS finally got wise to Elmer’s non-filings, and took it upon itself to file a substitute for return under IRC § 6020(b), and Elmer begrudgingly paid the assessed tax, as well as the failure to file and pay penalties, and interest (which, as far as you can tell, amounted to approximately $277, all in).
Almost in unison, Bill and Elmer calmly, resolutely, and with ever so much couth stated that they want to “sue their ass” (“they,” in this context, being the IRS, you surmised) for their refunds (“they,” in this context, being Bill and Elmer). Feeling that all-too-familiar migraine creeping up on you, you email your assistant, ask her to hold your calls, take a long and measured breath and some ibuprofen, steel your resolve, and begin to explain the income tax refund process to Bill and Elmer.
Part I: Claims for an Income Tax Refund
The First Step: Filing a Formal Claim for an Income Tax Refund
Although you appreciate your uncle and his cousin’s enthusiasm, and you would love nothing more than to find the administrative backside of the IRS and sue it for a refund, you explain to Bill and Elmer (in terms that they’ll understand) that this isn’t ‘Nam, and there are rules. These rules must be followed or there will be no refund, no matter how much they think they deserve it.
The first step to getting Bill and Elmer their money is to file a timely “claim” for refund with the IRS. You explain that the IRS may decide that their respective claims have merit, in which case, the IRS will simply refund the amounts due or credit their accounts. If not, then Bill and Elmer can sue for a refund to their hearts’ content.
When it comes to an income tax refund, a claim is “timely” (under IRC § 6511(a)) if it is filed within three years of the time the return was filed or two years from the time the tax was paid, whichever period expires later. If, in Elmer’s case, no return was filed, the claim must be filed within two years from the time the tax was paid (the substitute for return not counting as the “filing” of a return).
The IRS may allow a credit or refund even if no claim is filed, but the ability for the IRS to make this allowance will expire on the last day for filing a claim for credit or refund. You note, however, the chances that the IRS will, on their own initiative, simply determine a refund is due are about as good as Elmer’s thumb growing back—though stranger things have happened…like how Elmer lost his thumb.
You also mention that even if a return is delinquent for filing purposes, if it is within the refund statute of limitations, it may function as a timely claim for refund. When an amended return is filed before an extended due date, it is the filing of the original return that starts the limitations period for making a refund claim.
Even after the time for filing a claim has run, once Bill and Elmer submit a claim, they may supplement or amend this previously filed timely claim, so long as the IRS has not issued a notice of disallowance or allowed the claim in full.  However, you caution that an amendment filed after the statute has run cannot be used to obtain a refund on a new and unrelated ground. Thus, once the return period has run, the pair cannot “amend” their claims to add grounds for a refund other than what they originally stated in the timely claim.
Making a Claim for an Income Tax Refund
For an income tax overpayment, a claim can be made either on the original return or on an amended return, that is, a Form 1040X. Claims for refunds of other taxes (including penalties) are made on a Form 843 (Claim for Refund and Request for Abatement). A claim may be executed by an agent of the person assessed, but in such case a power of attorney must accompany the claim. Courts are very strict regarding submissions through a taxpayer’s power of attorney, so make sure it’s the most current form with original signatures before submitting.
When making a claim for refund, a taxpayer must follow certain requirements, including setting out each ground for which a refund is being claimed and enough facts to “inform the IRS” of the exact basis of the claim. Such statement must be made under the penalties of perjury. Upon utterance of the word “perjury,” Elmer shifts uncomfortably in his seat. You glower at him and ask him if the perjury bit is going to be an issue, and he sheepishly shakes his head “no,” though you have your sincere doubts.
Despite the “formal” claim requirement, “informal claims” may be allowed, where there is “harmless noncompliance” with the formalities of refund claims. Whether formal or informal, a claim must still satisfy the specificity requirements. Stated differently, the IRS will not venture a guess as to why a taxpayer is making a refund claim, nor will the IRS infer facts to support the claim.
Therefore, you caution Bill and Elmer, if they know what they’re asking for, don’t beat around the bush, and if they have facts to support the claim, don’t hide them within said bush. The courts do not demand exact precision when it comes to a refund claim, but, at a minimum, a taxpayer must identify the tax, the reason the taxpayer believes he’s owed a refund, and facts that support the claim.
You note that if a taxpayer fails to state the basis of the claim, a court will not have jurisdiction over a later refund suit. Before Elmer can even raise his hand to ask what in tarnation “jurisdiction” is, you explain that if a taxpayer fails explain why in the hell he deserves a refund in his claim, the taxpayer cannot later ask a court for a refund. The court will not have the authority (jurisdiction) to hear such an insufficient claim.
In certain situations, however, if the IRS is fully aware of nature of claim, courts have held that the IRS cannot thereafter argue that the claim was insufficient. This is so, even when a refund claim would otherwise have been too vague to vest the court with jurisdiction.
Requirements for an Informal Claim for an Income Tax Refund
Courts have long recognized that an informal claim for a refund will suffice under certain, limited circumstances. In fact, the Supreme Court held as far back as 1941 that a “notice fairly advising” the IRS of the nature of the taxpayer’s claim, which the IRS could otherwise reject because it was too general or because it does not comply with formal requirements of the statute and regulations, “will nevertheless be treated as a claim.” However, such “formal defects” or “lack of specificity” must be thereafter “remedied by amendment” to effectively “formalize” the claim.
You see four glazed-over eyes, and you explain further that if a claim is imperfect, the taxpayer can later perfect or “formalize” the claim to bring it within the specificity requirements. This policy of allowing an informal refund claim to be formalized after the fact is rooted in the idea that the initial informal claim puts the IRS on notice that a claim is being made by the taxpayer. It is important to remember, though, that informal claims must be corrected (formalized) by the taxpayer.
Further, informal claims for refund must still include a written component apprising the IRS that a refund is sought and identifying the tax periods involved. An oral request for a refund is not sufficient, even as an informal claim, if it is not also accompanied by some sort of written request. Courts have found, however, that written and oral communications between taxpayer and IRS should be viewed as whole, and if so viewed, the taxpayer has informally requested a refund, then it will serve as an informal claim for refund—subject to later formalization.
Courts have even found an informal claim to be sufficient when the taxpayer files the wrong form, so long as the form conveys enough information to inform the IRS of the basis for the claim. You emphasize once more that an informal claim must be formalized (a) so that the IRS will review it, and (b) so that a court will have jurisdiction over a later suit for refund.
In summary, an informal claim is likely adequate if the following components are met:
- It is in writing (or is a combination of an oral request and a written component);
- It includes a request for a refund/credit for certain years or periods;
- It informs the IRS of the basis for the overpayment; and
- It provides sufficient information as to the tax and year of the overpayment.
It is best practice to amend the claim for refund while the statute of limitations on refund remains open. Although amendments subsequent to the closing of the limitations period for refunds have historically been allowed, it is far better not to take this risk if it can be avoided.
Where an amendment filed after the statute has run sets forth a new ground for refunding an overpayment, the claim will be rejected as untimely. Also, once a refund claim either has been disallowed or has been allowed in full, the claim is considered closed and therefore cannot be amended.
Filing a Protective Claim for an Income Tax Refund
A protective claim is a formal claim for an income tax refund, which is generally filed during Tax Court litigation. A claim is considered “protective” because it is filed while litigation is ongoing and may continue past the two or three-year limitations period to make a refund claim. Thus, a “protective claim” is filed to protect the taxpayer’s right to a refund or credit so that the applicable statute of limitations for an issue being litigated does not run during the course of the litigation.
To be a valid protective claim, the right to a refund identified and described within the protective claim must be contingent upon the current litigation between the taxpayer and the IRS. Stated differently, if the taxpayer would be entitled to a refund if he were to prevail in his Tax Court case, the taxpayer may file a protective claim based on the contested issue or issues.
Because a protective claim is based on a contingency, the exact dollar amount need not be stated. However, to be valid, such a claim must be in writing; it must identify and describe the contingencies affecting the claim; it must be sufficiently clear and definite to alert the IRS as to the essential nature of the claim; and it must identify the specific year or years for which a refund is sought.
Tolling of Time for “Financial Disability“
Although different types of claims may have longer statutes of limitations for filing a claim under IRC § 6511(d), in general, the statute of limitations may not be extended beyond two or three years—except in the event that a taxpayer is “financially disabled.” Before Bill can wipe the drool from the corner of his mouth, you explain what you mean by “financially disabled.”
If a taxpayer is unable to manage his financial affairs because of “a medically determinable mental or physical impairment that can be expected to result in death, or has lasted (or can be expected to last) for a continuous period of not less than 12 months,” the taxpayer will be considered financially disabled. However, and this is important, an individual will not be considered financially disabled during any period in which the individual’s spouse or any other person is authorized to act on behalf of the individual in financial matters. Proof of the taxpayer’s financial disability must be furnished to the IRS.
Thus, if Bill becomes unable to care for his financial responsibilities due to a long-term mental or physical impairment, he will not be considered financially disabled if Aunt Ethel has a power of attorney that authorizes her to act on Bill’s behalf with respect to his finances or taxes. Neither will Elmer be financially disabled because of the loss of his fingers; though this is a permanent physical impairment, he still has both middle fingers (as you found out while driving behind him a year prior), and he can still function financially despite his unfortunate sciurine-related injuries.
You further note that the suspension of the limitation period due to financial disability is limited to only the subsections enumerated in IRC § 6511(h)(1)—but general claims for refund are covered. On the other hand, a financial disability will not matter in the case of the special limitation periods for, say, a net operating loss or capital loss carrybacks in IRC § 6511(d)(2).
Finally, financial disabilities apply only to natural persons. Thus, even if the estate’s personal representative is financially disabled, an estate cannot apply the IRC §6511(h) tolling provision, as an estate is an entity separate and distinct from the personal representative.
Part II: Filing a Suit for an Income Tax Refund
The “Window” to File Suit for an Income Tax Refund
Once a claim is rejected (“disallowed” if you want to get technical), the taxpayer has a limited “window” within which it must file a suit for refund of tax under IRC § 7422(a) in a federal district court or the Court of Federal Claims. A taxpayer can file suit on the earlier of: (1) the expiration of six months from the date of the filing of a claim for refund; or (2) the date on which the IRS rejects the claim. No particular form of rejection by the IRS is required. A separate window exists when the IRS fails to act on a refund claim after six months has passed since the claim was filed.
In any event, once the IRS sends the taxpayer a notice of disallowance by certified or registered mail, the taxpayer has two years from the date of the notice’s mailing in which to file the refund suit. The two-year period starts to run on the date the notice was mailed, even if the taxpayer never receives it. The two-year period for commencing a refund action can be extended by a written agreement between the IRS and the taxpayer. A handshake and a gentlemen’s agreement is not enough.
Courts have uniformly held that the notice of disallowance need not be in any particular form. Instead, the notice must simply provide the taxpayer official notification of the IRS’s adverse action. So long as the taxpayer receives adequate notice of the IRS’s disallowance, no particular form of notice is necessary to start the running of the period of limitations.
Nevertheless, the IRS generally will use a form letter that expressly states that the taxpayer’s claim has been disallowed, or partially disallowed. This notice will also generally inform the taxpayer that he may file a suit for refund with a district court or the Court of Federal Claims.
If a claim is disallowed, the taxpayer may ask the IRS to reconsider its disallowance of the refund. Understand, however, that reconsideration by the IRS after issuing a notice disallowing a refund claim does not extend the time for filing suit.
Some courts have held that if the IRS issues a second notice of disallowance, a new two-year filing period begins. In such cases, the courts have held that the IRS is equitably estopped from arguing that the taxpayer is barred from bringing suit under IRC § 6532. If the IRS issues a notice of disallowance, and the taxpayer allows the two-year period for filing suit to expire, the taxpayer may not, thereafter, revive the right to file suit by filing a second claim on the same grounds as the first.
Time Limit on Filing Suit when no Disallowance was Issued
Under IRC § 6532, a taxpayer has the option of filing suit at the expiration of six months from the date of filing the refund claim with the IRS. In the absence of a notice of disallowance or waiver, the Court of Federal Claims held that there is no time limit on filing suit.
At least two district courts have reached a different conclusion. The found that, absent a notice of disallowance, the taxpayer must file his refund suit within the six-year statute of limitations in 28 U.S.C. §2401. Thus, it is better not to act like you have all the time in the world to file suit after the expiration of six months from the date the claim was filed.
It is, however, interesting to note that the IRS has taken the position that a taxpayer may file a refund suit under IRC § 7422 at any time after the six months have passed (i.e., after filing the claim and the IRS has not issuing a notice of claim disallowance). The IRS adopted this position because it views the two-year period under IRC § 6532(a) as being triggered only after the IRS mails the notice of claim disallowance.
Commencing a Suit for an Income Tax Refund
A suit for refund is commenced by filing a complaint in federal district court or the Court of Federal Claims. The period for filing suit will not be extended by IRS consideration, reconsideration, or action regarding a previously disallowed claim. Neither is the limitations period for filing suit extended for any “equitable” considerations.
Equitable Tolling’s a Non-Starter
There are very few situations when it comes to income taxes in which “equitable” considerations come into play. In fact, short of equitable innocent spouse relief under IRC § 6015(f), you will be hard-pressed to find equity mentioned favorably in many Tax Court opinions.
Thus, it is unsurprising that courts have held unanimously held that the time limits in IRC § 6511 for filing refund claims are not subject to equitable tolling. Indeed, in the Brockamp case, the Supreme Court ruled that the equitable tolling doctrine does not apply to IRC § 6511’s time limits.
The taxpayer in Brockamp filed an administrative refund claim several years after the relevant statutory time period for doing so had ended, arguing that the limitations period should be tolled due to his mental disability. The Supreme Court noted that the time limitations set forth IRC § 6511, linguistically speaking, could not be read as containing any “implicit exceptions,” whatsoever.
The IRS’s “Variance” Defense
If, in a refund suit, the taxpayer raises an issue or theory that was not raised in the taxpayer’s original claim for an income tax refund, the suit will be dismissed for lack of jurisdiction. As noted above, a timely filed claim is jurisdictional in nature. If there is a “variance” between the grounds pled in the suit and those contained in the claim, the court does not have jurisdiction to hear the suit…because the grounds were not raised in a timely filed claim.
The courts have refused to sustain the government’s use of the variance defense where IRS personnel knew or should have reasonably known that an issue was raised in the claim or that it would be raised in the refund litigation. Still, the IRS cannot be expected to ferret out all possible grounds for a taxpayer’s request for refund simply because the facts underlying a claim are known by the IRS. The taxpayer must somehow communicate the claim to the IRS. Thus, once more, it is better not to rely on this limited exception to the variance rule.
The IRS may waive the variance defense. Courts have found waiver of the defense where the government failed to raise the defense until late in the refund suit; where the government, itself, raised the new issue by way of a defense; and where the government actually considered the challenged argument.
The Full-Payment Requirement
There is only one tribunal for prepayment litigation—the Tax Court. For district courts and the Court of Federal Claims, the language of 28 U.S.C. § 1346(a)(1) requires prepayment of the tax liability. There is a limited exception to the full-payment rule, which was first enunciated in the Flora case. However, when it comes to an individual taxpayer’s income tax refund, the partial payment rule does not come into play.
The Second Circuit, in the Magnone case, held that in addition to the tax assessed, Flora requires prepayment of assessed penalties, interest, and any other additions to tax in order to bring a refund suit in district court. On the other hand, the Court of Federal Claims has held that it has jurisdiction to hear tax refund suits, so long as the taxpayer has fully paid only the assessed income tax—which is to say in the Court of Federal Claims, the prepayment of interest and penalties is not required under the “full-payment” rule.
Summary of the Income Tax Refund Process
Bill and Elmer look like a couple of old horses who were rode hard and put up wet. Elmer’s old trucker hat is soaked through with nervous perspiration, and somewhere along the way, he has fallen unconscious in his seat. Bill looks like he could use a beer or eighteen. You smile at them and let Bill know that all is well in their refund world. They came to you in plenty of time for you to prepare and file a refund claim for each of them.
With what can only be described as a look of glazed, unfettered indignation, Bill politely asks why the hell you hadn’t just said that in the first place. You remind him of the time that he drove you from Biddeford to Milo, Maine, a nearly three-hour-long ride to your grandparent’s potato farm, sitting shotgun in his pickup truck (with two actual shotguns mounted behind you).
Even though you were only ten or eleven, Bill recounted his ice fishing exploits (none of which involved catching a single fish), what he did in Thailand when he was on leave during the Vietnam War (which you are still convinced is illegal, even in Thailand), and how he met Aunt Ethel (which still gives you nightmares).
You remind him that the only words that you were able to fit in edgewise during his ramblings were “Oh my God” and “Uncle Bill, please, please, stop.” You also remind him that turnabout is fair play, and that your refund story took only 37 minutes. As such, you still have a payback credit of two hours and twenty-three minutes.
You look at him squarely and ask him if he’s ever heard of the trust fund recovery penalty. You smile a most sinister smile as a single tear wells up in his right eye…
- Yes, I did look this up. You’re welcome. ↑
- IRC § 6511(a). ↑
- Id. ↑
- IRC § 6402; see, e.g., FleetBoston Fin. Corp. v. United States, 483 F.3d 1345, 1350 (Fed. Cir. 2007). ↑
- See Rev. Rul. 76-511; see also Omohundro v. United States, 300 F.3d 1065 (9th Cir. 2002). ↑
- Zellerbach Paper Co. v. Helvering, 293 U.S. 172 (1934); CCA 202026002. ↑
- United States v. Kales, 314 U.S. 186 (1941); Mut. Assurance, Inc. v. United States, 56 F.3d 1353 (11th Cir. 1995). ↑
- United States v. Andrews, 302 U.S. 517 (1938). ↑
- Treas. Reg. §301.6402-3. ↑
- Treas. Reg. §301.6402-2(c). ↑
- Gregory v. United States, 149 Fed. Cl. 719, 723 (Ct. Fed. Cl. 2020); Dixon v. United States, 147 Fed. Cl. 469 (Ct. Fed. Cl. 2020). ↑
- See Treas. Reg. §301.6402-2(b); CCA 201921013. ↑
- Treas. Reg. §301.6402-2(b). ↑
- See, e.g., United States v. Memphis Cotton Oil Co., 288 U.S. 62 (1933); BCS Fin. v. United States, 118 F.3d 522 (7th Cir. 1997). ↑
- Elmer reminds you that you technically hide things in a bushel, not a bush, but he understood your metaphor, nonetheless. You thank him for his magnanimity and move on. ↑
- See Nick’s Cigarette City, Inc. v. United States, 531 F.3d 516 (7th Cir. 2008); Ryan v. United States, 64 F.3d 1516 (11th Cir. 1995). ↑
- Id. ↑
- Beckwith Realty v. United States, 896 F.2d 860 (4th Cir. 1990). ↑
- Goulding v. United States, 929 F.2d 329 (7th Cir. 1991). ↑
- United States v. Kales, 314 U.S. 186, 194 (1941). ↑
- Id. ↑
- See BNSF Ry. v. United States, 745 F.3d 774 (5th Cir. 2014); but see Waltner v. United States, 679 F.3d 1329 (Fed. Cir. 2012). ↑
- See, e.g., Gustin v. United States, 876 F.2d 485, 488 (5th Cir. 1989). ↑
- Kales, 314 U.S. at 195; Miller v. United States, 949 F.2d 708, 711 (4th Cir. 1991). ↑
- See Bemis Bros. Bag Co. v. United States, 289 U.S. 28 (1933). ↑
- United States v. Andrews, 302 U.S. 517 (1938); Computervision Corp. v. United States, 62 Fed. Cl. 299 (Ct. Fed. Cl. 2004). ↑
- CCA 201526007. ↑
- IRM 188.8.131.52.7.3(1). ↑
- IRM 184.108.40.206.7.3(2). ↑
- FAA 20124602F. ↑
- IRM 220.127.116.11.2.6.5(2). ↑
- IRC § 6511(h). ↑
- IRC § 6511(h)(2)(B); see also Brosi v. Commissioner, 120 T.C. 5 (2003). ↑
- Rev. Proc. 99-21. ↑
- Yes, sciurine is a real word. It means of or relating to squirrels (from the Latin – sciurus) or other rodents in the Sciuridae family. Other fun ones are caprine/hircine (goat-like), pavonine (peacock-like), vulpine (fox-like), cricetine (hamster-like), bombycine (silkworm-like), ranine (frog-like), hystricine (porcupine-like), cygnine (goose-like), bubonine (owl-like), and trochiline (hummingbird-like). ↑
- Specifically, IRC § 6511(a) (period of limitation on filing claim); IRC § 6511(b) (limitation on allowance of credits and refunds); and IRC § 6511(c) (special rules applicable in case of extension of time by agreement). ↑
- CCA 201515019. ↑
- Carter v. United States, No. 5:18-cv-01380-HNJ (N.D. Ala. Aug. 9, 2019). ↑
- See IRC § 6532(a). ↑
- See CCA 201921013; CCA 200444019. ↑
- IRC § 6532. ↑
- IRC § 6532(a); Treas. Reg. §301.6532-1. ↑
- See, e.g., Rosser v. United States, 9 F.3d 1519 (11th Cir. 1993). ↑
- IRC § 6532(a)(2); see also Kaffenberger v. United States, 314 F.3d 944 (8th Cir. 2003). ↑
- Smith v. United States, 478 F.2d 398 (5th Cir. 1973). ↑
- IRC § 6532(a)(4); see Harper Int’l Corp. v. United States, 120 Fed. Cl. 66 (Ct. Fed. Cl. 2015). ↑
- See, e.g., Miller v. United States, 500 F.2d 1007 (2d Cir. 1974); Se. Bank of Orlando v. United States, 676 F.2d 660 (Ct. Cl. 1982). ↑
- Id. ↑
- L & H Co., Inc. v. United States, 963 F.2d 949 (7th Cir. 1992); Byrne v. United States, 127 Fed. Cl. 284 (2016). ↑
- Paresky v. United States, 139 Fed. Cl. 196 (Ct. Fed. Cl. 2018). ↑
- Finkelstein v. United States, 943 F. Supp. 425 (D. N.J. 1996); Wagenet v. United States, 2009 WL 4895363 (C.D. Cal. 2009). ↑
- CCA 2012-012. ↑
- Id. (or when the taxpayer waives the receipt of such notice). ↑
- Fed. R. Civ. P. 3. ↑
- IRC §6532(a)(4); see also Harper Int’l Corp. v. United States, 120 Fed. Cl. 66 (Ct. Fed. Cl. 2015). ↑
- United States v. Brockamp, 519 U.S. 347 (1997); Marcinkowsky v. United States, 206 F. 3d. 1419 (Fed. Cir. 2000). ↑
- Id. ↑
- See United States v. Felt & Tarrant Co., 283 U.S. 269 (1931). ↑
- Oregon Metallurgical Corp. v. United States, 12 Cl. Ct. 447 (Ct. Cl. 1987); Silberman v. United States, 40 Fed. Cl. 895 (Ct. Fed. Cl. 1998); W. Co. of N. Am. v. United States, 323 F.3d 1024 (Fed. Cir. 2003) (same). ↑
- Lindberg v. United States, 164 F.3d 1312 (10th Cir. 1999). ↑
- Tucker v. Alexander, 275 U.S. 228 (1927); Quarty v. United States, 170 F.3d 961 (9th Cir. 1999). ↑
- Brown v. United States, 427 F.2d 57 (9th Cir. 1970); Niagara Mohawk Power v. United States, 525 F.2d 1380 (Ct. Cl. 1975). ↑
- IA 80 Group v. United States, 347 F.3d 1067 (8th Cir. 2003). ↑
- Flora v. U.S., 362 U.S. 145 (1960). ↑
- Id. ↑
- Magnone, 902 F.2d at 193. ↑
- Shore v. United States, 9 F.3d 1524 (Fed. Cir. 1993). ↑