Govig & Associates Incorporated v. United States of America, 2:22-cv-00579

Govig & Associates and owners implemented a Death Benefit and Restricted Property Trust in 2015; IRS determined it was a listed transaction under IRS Notice 2007-83 and assessed § 6707A penalties (2015; later proposed for 2016–2017).
Plaintiffs paid the 2015 penalty (company principals and Jeanette Govig) and pursued prior suits: Govig I (dismissed under AIA) and Govig II (stipulated judgment/refund for some plaintiffs).
The Sixth Circuit in Mann later held Notice 2007-83 unlawful for failing to follow APA notice-and-comment, prompting this third suit (filed Apr. 2022) to set aside the Notice under the APA and obtain refunds/rescission for penalties.
Plaintiffs asserted five counts: (1) APA notice-and-comment violation; (2) APA ultra vires/substantive challenge; (3) APA arbitrary-and-capricious; (4) Jeanette’s refund claim (exhausted administratively); (5) declaratory relief/rescission of assessed penalties.
The Court (D. Ariz.) applied CIC Services and related precedent, held counts 1 and 3 time-barred and count 5 barred by the Anti-Injunction Act/Declaratory Judgment Act tax exception, denied dismissal of count 2 (substantive ultra vires) and count 4 (Jeanette’s refund).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether AIA/DJA bars APA challenge to Notice 2007‑83	Challenge to reporting requirement; CIC Services allows pre-enforcement APA suits to set aside reporting rules backed by tax/criminal penalties	AIA/DJA bar because relief would restrain assessment/collection of tax penalties	Counts 1–3: CIC Services controls; APA challenges to the Notice are not barred by AIA/DJA; count 5 (seek rescission of assessed taxes) is barred
Whether plaintiffs are precluded by prior dismissal (issue preclusion)	Govig I already dismissed similar claims, so claim preclusion applies	Prior decision predated CIC Services; intervening change in law negates preclusion	Issue preclusion rejected because CIC Services is an intervening change in law
Timeliness under 28 U.S.C. § 2401(a) (six‑year limit)	Claims accrued when IRS applied Notice to Plaintiffs (2019); therefore within six years	Procedural APA claims accrued at the Notice’s issuance (2007) and are time‑barred	Counts 1 and 3 are procedural and barred as untimely; Count 2 is substantive (as‑applied) and timely
Jurisdiction for refund claim (count 4)	Jeanette exhausted administrative remedies and seeks refund under § 7422/§ 1346(a)(1)	Government says relief is moot or administrative resolution obviates federal jurisdiction	Court retained jurisdiction over Jeanette’s refund claim (count 4); cannot find it moot on pleadings

CIC Services, LLC v. IRS, 141 S. Ct. 1582 (2021) (held AIA does not bar pre-enforcement APA challenges to information‑reporting requirements backed by tax and criminal penalties)
Mann Constr., Inc. v. United States, 27 F.4th 1138 (6th Cir. 2022) (vacated Notice 2007‑83 for APA notice‑and‑comment failure; court’s opinion did not establish nationwide nullity for other courts)
Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) (distinguishes accrual: procedural/policy challenges accrue at promulgation; substantive as‑applied claims accrue when applied to plaintiff)
Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) (procedural APA challenges are time‑barred if brought more than six years after rulemaking)
Interior Glass Sys., Inc. v. United States, 927 F.3d 1081 (9th Cir. 2019) (explains listed‑transaction disclosure regime under 26 C.F.R. § 1.6011‑4)
Bob Jones Univ. v. Simon, 416 U.S. 725 (1974) (AIA/DJA principles concerning suits that would restrain tax assessment/collection)
Enochs v. Williams Packing & Navigation Co., 370 U.S. 1 (1962) (Williams Packing narrow exception to AIA where government cannot prevail and equity warrants relief)
Dunn & Black, P.S. v. United States, 492 F.3d 1084 (9th Cir. 2007) (refund‑suit procedures and exhaustion under § 7422)