Does a Prior Pro Se Case Control?
The IRS’s final argument for denying the refund claim recommended that the court follow the decision in an unpublished related case. In Caba v. U.S. (2001-1 USTC para. 50,406), the taxpayer claimed a refund was due with respect to SBP payments that were converted into DIC payments. This case, however, differed from Ebert in one salient respect: The VA decision to convert the payment occurred after the taxpayer filed her complaint. Under the “substantial variance rule,” taxpayers are barred from presenting in a tax refund suit claims that “substantially vary the legal theories and factual bases set forth in the tax refund claim presented to the IRS” (Lockheed Martin Corp. v. United States, 2001-1 USTC para. 50,401). Furthermore, under the rule, “a ground for a refund that is neither specifically raised by a timely claim for a refund, nor comprised within the general language of the claim, cannot be considered by a court in a subsequent suit for a refund” (Ottawa Silica Co. v. United Sta
