Complaint — Aguero Transportation LLC v. United States (Southern District of Texas, December 30, 2025)
Summary
A complaint filed December 30, 2025, by Aguero Transportation LLC against the United States in the U.S. District Court for the Southern District of Texas, Case 5:25-cv-00301, under 26 U.S.C. § 7422. It seeks a federal tax refund of $132,673.51, an Employee Retention Credit claimed on payroll tax returns for the quarter ending September 30, 2021, which the complaint says was filed with the IRS no later than September 8, 2023 and remains unpaid. The plaintiff, a Laredo transportation company, alleges partial suspensions of operations in the third quarter of 2021 due to COVID-19 government orders. It asks for the refund, interest under 26 U.S.C. § 6611 and fees under 26 U.S.C. § 7430, and demands a jury. Justin H. DiLauro of DiLauro Tax Law PLLC signs /s/ as counsel.
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“Complaint — Aguero Transportation LLC v. United States (Southern District of Texas, December 30, 2025).”
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 1 of 15
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
AGUERO TRANSPORTATION
LLC
Plaintiff,
JURY DEMAND
5:25-cv-301
CIVIL NO:_____ ____
vs.
UNITED STATES OF AMERICA
Defendant.
COMPLAINT
Aguero Transportation LLC (hereinafter “Plaintiff or “Aguero”), by and
through its undersigned counsel files this Complaint against Defendant, United
States of America (“Defendant” or “United States”) pursuant to 26 U.S.C. § 7422.
Plaintiff files this civil action for a federal tax refund totaling $132,673.51, claimed
for refund against Plaintiffs’ payroll tax returns for quarterly tax period ending
September 30, 2021 (the 3rd quarter of 2021) that was duly and timely claimed and
filed with the Defendant’s nonparty agency, the Internal Revenue Service (the “IRS”
or the “Service”) no later than September 8, 2023, yet remain unchallenged and
unpaid to Plaintiffs by the Defendant or the Service.
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 2 of 15
I. JURISDICTION, VENUE, AND PARTIES
1. Jurisdiction of this Court is proper pursuant to 28 U.S.C. §§ 1340 and
1346.
2. Venue of this Court is proper pursuant to 28 U.S.C. § 1402.
3. Plaintiff, Aguero Transportation LLC, is a Limited Liability Company
(LLC) formed under the laws of the State of Texas, and whose principal address is
13498 Port Drive, Laredo, TX 78045 and operates throughout many states beyond
Texas.
4. Defendant is the United States of America and may be served by
mailing two copies of this Complaint by certified mail to the civil-process clerk of
the United States Attorney for the Southern District of Texas at 1000 Louisiana,
Suite 2300, Houston, Texas 77002, and mailing two copies of the Complaint by
certified mail to the Honorable Pamela Bondi, Attorney General of the United States,
950 Pennsylvania Avenue, NW, Washington, DC 20530-0001.
5. Defendant USA’s nonparty agency, the Internal Revenue Service (the
“IRS” or the “Service”), has factual relevance to this action, and the IRS may be
additionally served by mailing two copies of this Complaint by certified mail, along
with a copy of the Court-issued Summons, by certified mail to the Internal Revenue
Service, 1111 Constitution Avenue, NW., Washington, DC 20224.
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 3 of 15
II. NATURE OF THE FEDERAL TAX ISSUE AND ACTION
A. Federal Employment Taxes
6. Pursuant to federal law, employers are required to withhold certain
federal income taxes and taxes from the Federal Insurance Contributions Act (“FICA
Payroll Taxes”) from their employee’s wages and other compensation.
7. Pursuant to 26 U.S.C. §§ 3102, 3111, 3301, and 3402, employers are
also required to pay their own portion of FICA Payroll Taxes and taxes from the
Federal Unemployment Taxes and Federal Unemployment Tax Act (“FUTA
Taxes”), and FICA Payroll Taxes and FUTA Taxes are collectively commonly
referred to as “employment taxes” or “payroll taxes”.
8. Pursuant to 26 U.S.C. §§ 6302 and 6157, as well as 26 C.F.R. §§
31.6302-1, 31.6302(c)-1, and 31.6302(c)-3, employers are required to periodically
deposit employment tax payments in certain prescribed federal deposit banks.
9. Pursuant to 26 U.S.C. § 6011, as well as 26 C.F.R. § 31.6071(a)-1,
employers are further required to file quarterly payroll tax returns (“IRS Form 941”
or “Form 941”) and annual returns for their FUTA Taxes.
B. The COVID-19 Pandemic-Related “CARES” Act
Employee Retention Credit (“ERC”)
10. At the outset of the global COVID-19 pandemic, the United States
enacted the Coronavirus Aid, Relief, and Economic Security Act (the “CARES
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 4 of 15
Act”) on March 27, 2020, which provided numerous federal government programs
and funding in response to the economic challenges faced by the American people,
businesses, and taxpayers.1
11. Amongst the CARES Act provisions, section 2301 provided for a new
Employee Retention Credit (“ERC” or “ERTC”), which is a “refundable” tax credit
applied against the employer-portion of businesses employment taxes for the period
from March 12 through December 31, 2020.2 Section 2301 of the CARES Act was
later amended by the Taxpayer Certainty and Disaster Relief Act of 2020 (the “Relief
Act”) to extend ERC into the first two quarters of 2021.3 The American Rescue Plan
Act of 2021 (“ARPA” or “ARPA 2021”) further extended ERC through the end of
2021.4 The Infrastructure Investment and Jobs Act (“IIJA”) later removed eligibility
for most employers in the fourth quarter of 2021.5 The ERC credit was ultimately
codified as 26 U.S.C. § 3134, where Title 26 is the “Internal Revenue Code.”
12. Pursuant to 26 U.S.C § 3134(c)(2)(A)(ii), ERC provides a few different
avenues of qualification, and all aimed at both incentivizing and rewarding
1
See The Coronavirus Aid, Relief and Economic Security Act (CARES Act), Pub. L. No 116-136,
134 Stat. 281 (2020).
2
See id.
3
See The Taxpayer Certainty and Disaster Relief Act of 2020, Pub. L. 116-260, Div. EE (2020).
4
See The American Rescue Plan Act of 2021, Pub. L. 117-2, 135 Stat. 4 (March 11, 2021).
5
See Infrastructure Investment and Jobs Act, Pub. L. 117-58, 135 Stat. 429 (Nov. 15, 2021).
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businesses maintaining employment during the COVID-19 pandemic in 2020 and
2021. Specifically:
a. Certain businesses meeting certain defined business disruption criteria
by quarter were equally eligible for the same per employee refundable
ERC tax credit by quarter,
b. Businesses who demonstrated certain quantitatively defined gross
receipt drops by quarter, as compared to pre-pandemic periods, were
eligible for a per employee per quarter refundable ERC tax credit, or
c. Certain businesses defined as “recovery startup businesses.”
C. ERC Qualification – Partial Suspension of Business Operations
13. Pursuant to section 2301(c) of the CARES Act, as amended by section
207(a)(1) of the Relief Act, additionally amended by ARPA and IIJA, and finally
codified in 26 U.S.C. § 3134, employers are eligible for the ERC tax credit in
quarters where the:
“[O]peration of the trade or business described in clause (i) is fully or
partially suspended during the calendar quarter due to orders from an
appropriate governmental authority limiting commerce, travel, or group
meetings (for commercial, social, religious, or other purposes) due to
the coronavirus disease 2019 (COVID–19)”.6
14. In absence of a Treasury Regulation for authoritative interpretation of
the Employee Retention Credit, the IRS Office of the Associate Chief Counsel
6
CARES Act, Pub. L. No 116-136 at 2301(c).
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issued Notice 2020-21, Guidance on the Employee Retention Credit under Section
2301 of the Coronavirus Aid, Relief, and Economic Security Act, on March 1, 2021.
Notice 2020-21 offered much needed IRS interpretation of the Employee Retention
Credit program, including 71 Questions and Answers providing a variety of
qualitative interpretations for different ERC issues.
15. As applicable to partial suspension of operations, IRS Notice 2020-21
addresses this application in several areas, and per Question and Answer No. 17:
“If all, or all but a nominal portion, of an employer’s business
operations may continue, but the operations are subject to modification
due to a governmental order (for example, to satisfy distancing
requirements), such a modification of operations is considered to be a
partial suspension of business operations due to a governmental order
if the modification required by the governmental order has more than a
nominal effect on the business operations under the facts and
circumstances."7
16. Further, Question and Answer No. 18 of Notice 2021-20 clarifies that
a modification due to a government order alone is not enough but additionally
clarifies that a partial suspension exists with a more than nominal effect on the
business as a result of the government order and is based on the facts and
circumstances of the respective taxpayer and claim.8
7
IRS Notice 2021-20, Q/A 17, pgs 34-45.
8
Id at Q/A 18, pgs. 39-40.
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17. Additionally, Question and Answer No. 20 of Notice 2021-20 interprets
that, for employers operating in multiple jurisdictions nationwide, company policies
that comply with local government orders, as well as the Centers for Disease Control
and Prevention (CDC) recommendations and the Department of Homeland Security
(DHS) guidance, and that are established to operate in a consistent manner
companywide can establish a partial suspension of operations for ERC tax credit
qualification.9
D. COVID-19 Government Orders
18. Throughout 2020 and 2021, all states and most local jurisdictions (e.g.
cities, counties, etc) issued orders mandating various restrictions, prohibitions, and
requirements as to personal behavior that limited commerce, travel, or group
meetings due to COVID-19.
19. As a part of the government orders per statement no. 18 above, several
states and many local jurisdictions mandated restrictions and requirements to even
essential business and services, who despite permitted to operate: yet such mandates
still limited commerce, travel, or group meetings due to COVID-19 as to essential
services.
20. Throughout 2020 and 2021, several United States federal departments
and agencies, including CDC and DHS, further issued recommendations and
9
Id at Q/A 20, pgs. 40-41.
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guidance, which if applied, limited commerce, travel, or group meetings due to
COVID-19.
E. ERC – Credit Amount Determination
21. For the July 1 through September 30, 2021 time period (the third quarter
of 2021) and pursuant to sections 2301(a) and (b)(1) of the CARES Act, as amended
by sections 207(b) and (c) of the Relief Act, additionally amended by ARPA and
IIJA and latter codified in 26 U.S.C. §§ 3134(a) & (b)(1)(A), eligible employers
receive a tax credit against employment taxes of up to 70 percent ($10,000 per
employee per calendar quarter including certain health care expenses), but no more
than $7,000 per quarter per employee for each eligible 2021 quarter.
22. Section 2301(g) of the CARES Act, as amended by section 206(c)(2)
of the Relief Act, and 26 U.S.C. § 3134(h)(2) provide that any payroll costs covered
as “forgiven” by the Paycheck Protection Program (PPP) of the 2020 CARES Act
are excluded “qualifying wages” for purposes of the ERC tax credits.10
F. ERC – Refundability and Amendment for Refund Claim
23. Pursuant to section 2301(b), et al, and 26 U.S.C. § 3134(b), ERC tax
credit claims are first used to offset employment taxes for the respective period, and
10
See also The Coronavirus Aid, Relief and Economic Security Act (CARES Act), Pub. L. No
116-136, 134 Stat. 281(2020).
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any excess is further “refunded” to the taxpayer claimant per 26 U.S.C. §§ 6402(a)
and 6413(b).
24. Pursuant to 26 U.S.C. § 6511, taxpayers have up to three (3) years from
the date of filing a tax return to amend the same return for a claim for refund or credit
of taxes, and further pursuant to 26 U.S.C. § 6513(c), the date of filing for payroll
tax returns are deemed filed on April 15th of the succeeding calendar year.
G. Submitting Amended Tax Returns and Other Tax Documents to the IRS
25. Pursuant to 26 U.S.C. § 7502, the “date of delivery” of any taxpayer’s
submission or filing of “any return, claim, statement, or other document” submitted
by mail is the postmark date of the mailing.
26. Pursuant to 26 U.S.C. § 7502(c) and 26 C.F.R. § 301.7502-1, such
mailings described in statement no. 25 above that are mailed via the United States
Postal Service (USPS) via “registered mail” or “certified mail” is prima facie
evidence that such a mailing was “delivered” to the IRS on the postmark date; the
postmark date being the date of registered mail registration and/or certified mail
payment.
27. Further, pursuant to 26 U.S.C. § 7502(c) and 26 C.F.R. § 301.7502-1,
the IRS may also identify “Private Delivery Services” (“PDS”), e.g. DHL Express,
FedEx, and UPS, from time-to-time that are permitted to serve in place of USPS
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mailings for purposes of applying the rules of 26 U.S.C. § 7502 and 26 C.F.R. §
301.7502-1.11
III. PLAINTIFF BACKGROUND AND FACTUAL ASSERTIONS
A. Company Overview
28. Plaintiff Aguero is a transportation company, registered with the U.S.
Department of Transportation (“USDOT”), USDOT No. 1668514, headquartered in
Laredo, Webb County, Texas, and a USDOT transportation business since at least
2003.
29. Aguero is a carrier engaged in various material transport activities,
including general freight, household goods, metal goods, tow away, lumber, building
materials, machinery/large objects, fresh produce, intermodal passengers, oilfield
equipment, grain/feed/hay, dry commodities, paper products, utilities, agricultural
products, and construction materials.
30. Throughout 2020 and 2021, including the 3rd quarter of 2021, Plaintiff
transported goods and materials throughout many states beyond Texas.
31. During the 3rd quarter of 2019, Plaintiff had less than 500 employees
for its payroll tax return filings that were subject to FICA Payroll Taxes.
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11
See also Private Delivery Services PDS, Internal Revenue Service,
https://www.irs.gov/filing/private-delivery-services-pds.
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 11 of 15
B. COVID-19 Impact and Partial Suspensions of Operations
32. Prior to 2020-2021 and during 2019, Plaintiff had various
transportation services, each of which were more than nominal portions of Aguero’s
business, separately and independently.
33. Throughout the 3rd quarter of 2021, various state and local COVID-19
orders and mandates, per statement nos. 18 through 19 above, impacted Aguero’s
transportation services.
34. Due its transportation operations across many states beyond Texas and
its impact by many COVID-19 government orders and mandates, throughout the 3 rd
quarter of 2021, Plaintiff had policies of mandatory compliance with CDC and DHS
recommendations and guidance as to COVID-19 (e.g social distancing, occupancy
limits, etc.).
35. Due to both applications to many COVID-19 state and local orders and
its company policy of CDC and DHS compliance, per statement nos. 33 and 34
above, Plaintiff had to modify its operations for its transportation services.
36. Due to the operational modifications as described in statement no. 35
above, Aguero’s operations of its services, were more than nominally impacted
under the facts and circumstances.
37. Plaintiff experienced one or more partial shutdowns due to COVID-19
government orders throughout the 3rd quarter of 2021.
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 12 of 15
C. Plaintiff ERC Credit Claim At Issue
38. For the 3rd quarter of 2021, Plaintiff timely determined and executed its
quarterly and annual employment tax payment and reporting; most specifically
through its timely filed quarterly report via the IRS Form 941. For its original timely
filing, Plaintiff did not claim the ERC tax credit.
39. Subsequent to its original reporting and payments, Plaintiff determined
it experienced one or more partial suspensions of operations to qualify for ERC tax
credit for the 3rd quarter of 2021, per statement nos. 32 through 37 above.
40. Aguero calculated its ERC tax credit for the 3rd quarter of 2021 as
$132,673.51 and summarized in the table below:
41. No later than September 8, 2023, Plaintiff timely filed an amended
quarterly federal employment tax report with Defendant’s nonparty agency, the IRS,
for the 3rd quarter of 2021 with a claim for refund requested pursuant to the ERC tax
credits for this quarter (hereafter collectively referred to as the “Plaintiff ERC Credit
Claim At Issue”) in the amounts in statement no. 40 above.
42. Since the filings described in statement no. 41 above, Defendant or
Defendant’s nonparty agency, the IRS, has failed to issue refunds to the Plaintiff for
the ERC Credit Claim At Issue.
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43. On December 12, 2024, Defendant’s nonparty agency, the IRS notified
Plaintiff it was summarily disallowing the ERC Credit Claim At Issue via a form
letter 105C.
44. Since the filings described in statement no 41 above, Defendant or
Defendant’s nonparty agency, the IRS, have made no claim to the Plaintiff of any
federal taxes owed by Plaintiff, regardless of nature and time period, under Title 26
of the United State Code that the ERC credits for the Plaintiff Pending ERC Credit
Claim would be appropriate to use as an offset for any such owed taxes.
IV. CAUSE OF ACTION – 26 U.S.C. §§ 7422 & 6532
45. An taxpayer of the United States is permitted to file a delayed refund
suit against the United States, pursuant to 26 U.S.C. §§ 7422 and 6532, for the
recovery of taxes imposed under Title 26 of the U.S. Code in U.S. District Court,
provided:
a. a claim for refund has been filed with the IRS,
b. it has been at least six months from the date of such filing, or
c. it has yet been two years from the date the IRS notified the taxpayer
that such a claim has been disallowed.
46. Plaintiff is a taxpayer of the United States who has filed claims for
refunds of its employment taxes imposed under Title 26 of $132,673.51 for its 3 rd
quarter of 2021 no later than September 8, 2023.
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 14 of 15
47. Defendant, the United States of America, via its nonparty agency, the
IRS, has failed to issue the claimed refunds to the Plaintiff.
48. It has been longer than six months since the Plaintiff has filed the refund
claims, and it has yet been two years from any claim disallowance.
49. Plaintiff is entitled to the credits and its claims for refund as claimed
and identified in statement no. 46 above, including any additional interest it is
entitled to under 26 U.S.C. § 6611.
50. Plaintiff is entitled to reasonable attorney’s fees and legal costs
associated with this cause of action pursuant to 26 U.S.C. § 7430.
V. PRAYER FOR RELIEF
51. WHEREFORE, the Plaintiff prays this Court orders the Defendant,
United States:
a. Issue refunds for the Plaintiff’s claim for refund of taxes of
$132,673.51.
b. Issue additional refunds to Plaintiff for any interest entitled to it under
26 U.S.C. § 6611.
c. Award Plaintiff reasonable attorney’s fees and other legal costs
permissible under 26 U.S.C. § 7430.
VI. TRIAL BY JURY DEMANDED
52. Plaintiff demands a trial by jury for all issues triable.
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Case 5:25-cv-00301 Document 1 Filed 12/30/25 in TXSD Page 15 of 15
Dated: December 30, 2025 Respectfully submitted,
/s/ Justin H. DiLauro__ __ _
JUSTIN H. DILAURO, ESQ.
Sr. Tax Attorney and Owner/Manager
DiLauro Tax Law PLLC
9639 Hillcroft Street, Suite 844
Houston, Texas 77096
(888) 463-5829
(713) 456-2027 (fax)
JHD@DiLauroTaxLaw.com
USDC TXSD: 3865386
Texas State Bar No: 24055404
Counsel for Plaintiff
Aguero Transportation LLC
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