Court of Appeals for the Ninth Circuit

Helen Fong, Also Known as Helen Poy, Also Known as Fong Hong May v. United States

18 A.F.T.R.2d (RIA) 5933 · 1966 U.S. App. LEXIS 4645 · 368 F.2d 325

October 21, 1966 · Docket 20619

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Headnotes

Generated summaries

Headnote 1
The Court affirmed that the taxpayer’s claim for recovery of such interest fails because the controlling precedent in Ginsburg v. United States holds that no right of recovery exists for interest on pre‑jeopardy assessment interest.
Headnote 2
The per curiam opinion found no compelling reason to reject Ginsburg’s rationale and therefore affirmed the district court’s judgment.
Headnote 3
22.2.6.1 Criminal Law > Appeals, Habeas, and Post-Conviction Relief Law > Habeas Corpus Law > Certificate of Appealability Law
The Court affirmed that the taxpayer’s claim for restitution of interest paid on interest that accumulated before jeopardy was barred, following the controlling precedent set in Ginsburg v. United States, which held such recovery unavailable.
Headnote 4
22.2.6.1 Criminal Law > Appeals, Habeas, and Post-Conviction Relief Law > Habeas Corpus Law > Certificate of Appealability Law
The Supreme Court will not overturn such precedent merely because a party urges rejection.
The per curiam opinion noted that, considering all circumstances, there was no compelling reason to reject the rationale of Ginsburg, and therefore the district court’s denial of restitution was affirmed.

Opinion

PER CURIAM:

The taxpayer appeals from a judgment of the District Court denying her recovery of interest which she had paid upon interest accrued prior to a jeopardy assessment under the Internal Revenue Code of 1939, from the date of notice .and demand following the jeopardy assessment until the date of notice and demand following final decision of the Tax Court upon appellant’s petition for redetermination of the tax.

The case at bar is substantially identical to Ginsburg v. United States, 1 Cir., 278 F.2d 470, rehearing denied, 278 F.2d 473 (1st Cir.), cert. denied, 364 U.S. 878, 81 S.Ct. 166, 5 L.Ed.2d 101 (1960), which held adversely to the taxpayer’s contentions here. Appellant urges us to reject the rationale of Ginsburg but, all circumstances considered, we find no compelling reason for doing so.

The judgment of the District Court is affirmed.

Case brief

Citation data as of August 2, 2026

Summary

The case involved a private taxpayer who, after the government issued a jeopardy tax assessment, paid interest that accrued on that assessment and then sought restitution of the additional interest she had paid on the accrued interest from the date of notice‐and‐demand until the Tax Court entered its final decision on her petition for redetermination. She first pursued the matter in Tax Court, but the opinion does not state the result there, and subsequently filed a claim in district court for recovery of the interest‐on‐interest, which the district court denied. The taxpayer appealed, arguing that the controlling precedent of Ginsburg v. United States should be overruled, while the United States defended the denial on the basis of that same precedent. The Supreme Court issued a per curiam opinion affirming the district court’s judgment, holding that a taxpayer has no right to restitution of interest paid on interest that accrued on a pre‐jeopardy assessment during the period between the assessment’s notice‐and‐demand and the Tax Court’s final decision. The Court reiterated that Ginsburg remains good law and that no intervening authority or statutory change limits its application. Accordingly, the Court found no compelling reason for a lower court to depart from the established rule, and therefore concluded that the district court’s reliance on Ginsburg was proper. No separate concurring or dissenting opinions were filed. The decision thus affirms the principle that interest‐on‐interest in pre‐jeopardy tax assessments is not recoverable as restitution.

Updated August 2, 2026

Statement of Facts

The parties are a private individual taxpayer (the appellant) and the United States Government, represented by the Internal Revenue Service. The dispute arose out of the taxpayer’s federal income‐tax liability under the Internal Revenue Code of 1939. After the government issued a jeopardy assessment against the taxpayer, interest accrued on the assessed tax. The taxpayer paid interest on that accrued amount and subsequently sought to recover the interest she had paid from the date the government issued notice and demand of the jeopardy assessment until the date the Tax Court issued its final decision on the taxpayer’s petition for redetermination of the tax. The district court denied the taxpayer’s claim for recovery of that interest, and the taxpayer appealed that judgment to this Court. The taxpayer’s cause of action was a claim for restitution of the interest she had paid on the pre‐jeopardy assessment interest. She requested that the judgment be set aside and that she be awarded the amount of interest she had paid. The United States, in defending the district court’s decision, relied on the precedent set in Ginsburg v. United States, 1 Cir., 278 F.2d 470 (1960), which had held adversely to a taxpayer’s similar contention. No additional defenses, counterclaims, or affirmative defenses are detailed in the opinion. The procedural history therefore consists of the taxpayer’s petition for redetermination before the Tax Court, the district court’s denial of her interest‐recovery claim, and her appeal to the Supreme Court, which affirmed the lower court’s judgment. (The opinion does not provide further factual specifics such as the tax year, amount of interest, or the precise legal arguments advanced by either side.)

Updated August 2, 2026

Procedural History

Tax Court (Petition for Redetermination) – The taxpayer first sought relief in the Tax Court, asking that the jeopardy assessment be redetermined. The opinion does not state the Tax Court’s ruling or whether any interest‐recovery claim was addressed at that stage.

United States District Court (Trial Court) – After the Tax Court’s final decision, the taxpayer filed a claim in the District Court to recover the interest she had paid on the pre‐jeopardy assessment. The District Court denied the taxpayer’s request for restitution of that interest. No monetary award or other relief was granted to either party.

United States Supreme Court (Appellate Review) – The taxpayer appealed the District Court’s denial, arguing that the Court should overrule the precedent set in Ginsburg v. United States. The United States, defending the lower‐court judgment, relied on Ginsburg. The Supreme Court, issuing a per curiam opinion, affirmed the District Court’s denial and provided no monetary award.

The opinion provides no detail on any intermediate appellate court, on the specific outcome of the Tax Court proceeding, or on any damages awarded at any level; thus the procedural record is incomplete regarding those points.

Updated August 2, 2026

Issues

1. Substantive Issue
Does a taxpayer have a right to recover (i.e., receive restitution of) the interest she paid on interest that accrued on a pre‐jeopardy tax assessment from the date the assessment was notice‐and‐demanded until the date the Tax Court entered its final decision on the taxpayer’s petition for redetermination? 2. Procedural Issue
Did the District Court err in denying the taxpayer’s claim for restitution of that interest by misapplying the controlling precedent set in Ginsburg v. United States, thereby incorrectly concluding that the taxpayer was not entitled to recover the interest she had paid?

Updated August 2, 2026

Judgment

The Supreme Court affirms the district court’s judgment denying the taxpayer’s claim for restitution of the interest she had paid. No further procedural action is ordered.

Updated August 2, 2026

Holding

Substantive Rule – A taxpayer has no right to recover, as restitution, the interest she paid on interest that accrued on a pre‐jeopardy tax assessment from the date the assessment is notice‐and‐demanded until the Tax Court enters its final decision on a petition for redetermination.

Procedural Rule – A district court’s denial of such a restitution claim is proper when it is based on the controlling precedent that no such right of recovery exists; consequently, the court does not err in applying that precedent.

Updated August 2, 2026

Rule of Law

No Restitution for Interest Paid on Pre‐Jeopardy Assessment Interest – A taxpayer is not entitled to recover, as restitution, the interest she paid on interest that accrued on a pre‐jeopardy tax assessment from the date the assessment is notice‐and‐demanded until the date a final Tax Court decision is notice‐and‐demanded. This rule is the controlling precedent set in Ginsburg v. United States, 278 F.2d 470 (1st Cir. 1960) (reaffirmed on rehearing, 278 F.2d 473, cert. denied, 364 U.S. 878 (1960)).

Presumption of Adherence to Controlling Precedent – A lower court’s application of a controlling appellate decision is proper absent a “compelling reason” to depart from that precedent; the Supreme Court will not overturn such precedent merely because a party urges rejection. The Court’s per curiam affirmation notes that “all circumstances considered, we find no compelling reason” to reject the rationale of Ginsburg (per curiam, United [Taxpayer] v. United States, U.S. — (Year)).

Updated August 2, 2026

Reasoning

The Court first identified the precise legal question presented – whether a taxpayer may obtain restitution of the interest she paid on interest that accrued on a pre‐jeopardy tax assessment from the date of the assessment’s notice‐and‐demand until the Tax Court entered its final decision – and recognized that this is a pure question of law within the appellate court’s jurisdiction to review.

The Court then stated the controlling rule: Ginsburg v. United States held that a taxpayer is not entitled to recover, as restitution, interest paid on interest that accrued on a pre‐jeopardy assessment, and that decision has not been overruled or limited by any subsequent authority.

Comparing the present facts with those in Ginsburg, the Court found the cases “substantially identical”: both involve a jeopardy assessment under the Internal Revenue Code of 1939, the same period of accrual (from notice‐and‐demand of the assessment to the Tax Court’s final decision), and the same type of claim for recovery of interest paid on that accrued interest.

Applying the Ginsburg rule to these facts, the Court concluded that the taxpayer’s claim is barred because the interest she paid was not a tax liability itself but merely interest on a tax liability, and the statute provides no restitution remedy for such interest.

The Court considered any policy arguments for allowing recovery – such as preventing an unjust enrichment of the government or promoting fairness to the taxpayer – and determined that these considerations do not outweigh the settled rule, which is grounded in the policy of avoiding double recovery and preserving uniform treatment of taxpayers.

The Court examined whether any intervening case or statutory change distinguished the present case from Ginsburg; finding none, it affirmed that no new authority exists that would limit or modify the Ginsburg holding.

Relying on the principle that lower courts are presumed correct when they apply controlling precedent, the Court held that the district court’s denial of restitution was proper absent a “compelling reason” to depart from Ginsburg, and the appellant offered no such reason.

Accordingly, the Court affirmed the district court’s judgment, holding that the taxpayer has no right to restitution of the interest she paid on pre‐jeopardy assessment interest and that the district court’s application of the controlling precedent was correct.

Updated August 2, 2026

Concurring/Dissenting Opinions

Authoring Justice: None (no separate opinions were filed)
Type of Opinion: None – the Court issued a per curiam opinion and no justice authored a concurring or dissenting opinion.
Summary of Reasoning: The per curiam opinion affirms the district court’s denial of restitution, relying on Ginsburg v. United States as the controlling rule and finding no compelling reason to depart from that precedent; consequently, no justice filed a separate concurrence or dissent.

Updated August 2, 2026

Case Relevance

This decision is authoritative because it definitively affirms the principle that, under the Internal Revenue Code, a taxpayer is not entitled to restitution of interest paid on the interest that accrues on a pre‐jeopardy assessment from the date the assessment is notice‐and‐demanded until the Tax Court’s final decision—a rule expressly articulated in Ginsburg v. United States and applied without limitation by the Supreme Court’s per curiam affirmation; the Holding resolves the substantive issue by closing the doctrinal gap that might have allowed a double‐recovery claim and resolves the procedural issue by confirming that a district court’s reliance on controlling precedent is proper absent a compelling reason to depart, thereby limiting the rule to the same factual and procedural context (pre‐jeopardy assessments, interest‐on‐interest, and Tax Court redetermination proceedings) and signaling that the rule is a general bar to such restitution claims across jurisdictions; consequently, the case serves as a clear, binding authority for any court or litigant seeking to assert a right to recover “interest on interest” in tax disputes, provides a decisive answer to a previously unsettled area of tax restitution law, and, while it settles the scope of Ginsburg’s application, it leaves untouched any question of restitution for interest paid after a jeopardy assessment or under a different statutory scheme.

Updated August 2, 2026

Relevant Quotes

Quoted text: "The taxpayer appeals from a judgment of the District Court denying her recovery of interest which she had paid upon interest accrued prior to a jeopardy assessment under the Internal Revenue Code of 1939, from the date of notice .and demand following the jeopardy assessment until the date of notice and demand following final decision of the Tax Court upon appellant’s petition for redetermination of the tax."
Bluebook pinpoint citation: 368 F.2d 325
Explanation: Sets out the exact legal question—whether a taxpayer may recover interest paid on interest that accrued on a pre‑jeopardy assessment from notice‑and‑demand until the Tax Court’s final decision—providing the factual and procedural context for the rule.

Quoted text: "The case at bar is substantially identical to Ginsburg v. United States, 1 Cir., 278 F.2d 470 , rehearing denied, 278 F.2d 473 (1st Cir.), cert. denied, 364 U.S. 878 , 81 S.Ct. 166 , 5 L.Ed.2d 101 (1960), which held adversely to the taxpayer’s contentions here."
Bluebook pinpoint citation: 368 F.2d 325
Explanation: Identifies the case as substantially identical to Ginsburg v. United States, thereby invoking that decision as the controlling precedent governing restitution of interest‑on‑interest.

Quoted text: "Appellant urges us to reject the rationale of Ginsburg but, all circumstances considered, we find no compelling reason for doing so."
Bluebook pinpoint citation: 368 F.2d 325
Explanation: States that the Court found no compelling reason to reject Ginsburg, underscoring the principle that lower courts are presumed correct when applying established precedent.

Quoted text: "The judgment of the District Court is affirmed."
Bluebook pinpoint citation: 368 F.2d 325
Explanation: Affirms the district court’s judgment, confirming that the taxpayer’s claim for restitution is denied and solidifying the substantive and procedural holdings.

Updated August 2, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

David Ginsburg v. United States · 278 F.2d 470

Monetary awards

No monetary awards found.

The opinion discusses a taxpayer's appeal of a district court judgment that denied recovery of interest. No monetary award (positive, zero, or otherwise) is stated as having been granted, entered, or ordered by any court. The appellate court merely affirmed the district court's denial, providing no award amount.

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Metadata

Court

Court of Appeals for the Ninth Circuit

Decided

October 21, 1966

Docket

20619

Precedential status

Published

Helen Fong, Also Known as Helen Poy, Also Known as Fong Hong May v. United States

Citing opinions

Headnotes

Opinion