United States of America, Counter-claimant/appellee, v. Frank v. Turner, Carolyn Turner, Counter-defendants Appellants, 107 F.3d 19 (9th Cir. 1997)

MEMORANDUM^** 

Taxpayers Frank and Carolyn Turner appeal from the district court's order granting summary judgment for the United States on the Turners' refund claims for the 1988 and 1990 tax years and on the United States coutnerclaim for recovery of an erroneous refund for the 1989 tax year.

Appellants contend that the payments Mr. Turner received were excludable from gross income pursuant to 26 U.S.C. §§ 104(a) (3), 105(a) and 105(c). However, we agree with the district court's analysis that the payments were properly included in Mr. Turner's income. See District Court Order Granting Summary Judgment.

In addition, the government's counterclaim to recover the erroneous refund was filed within the statute of limitations. The government filed its counterclaim under 26 U.S.C. § 7405(b). The statute of limitations for that provision is provided by § 6532(b), which allows for recovery of an erroneous refund within 2 years after the making of such refund. See 26 U.S.C. § 6532(b). Here, the government granted the refund on March 29, 1993 and filed the counterclaim on November 23, 1994. Consequently, the applicable two-year statute of limitations does not bar the government's counterclaim.

AFFIRMED.