I mailed it certified...

IRC Section 6081 provides for extension of time to file. Neither the code section nor Form 4868 mention assessment. No extension of time to asses a return on filing extension is needed as the assessment clock doesn't start until the return is filed. In contrast, Form 872, Consent to Extend the Time to Assess Tax, specifically references section 6501.

Reply to
paultry
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under what theory?

Reply to
taxed and spent

IRC Section 7502(a)(1) says this:

"If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover [envelope] in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be."

Based on my reading of this provision in the law, my 2010 income tax return, if the postmark date on its envelope is October 15, 2014, is deemed to have been delivered to the IRS on that date. Am I wrong?

And oh, by the way, I watched as the USPS worker stamped that date on that envelope on that day at the post office. And IRS has received the return and the claim and I don't care when they got it, as the law says it is deemed to have been delivered on the fifteenth of October, 2014.

And also, I believe my claim for the refund of the overpayment was timely. Can someone show me why it was not?

And I'm not going to settle for "because the IRS says so", okay?

Reply to
lotax

While I agree with you that the 10/15/14 postmark establishes the time of filing, I still don't agree that the claim was timely. I don't believe you get two bites at the statute of limitations with regard to a tax payment. You can extend a running statute of limitations (eg, by filing a return) but in your case, the statute expired two years after the tax was paid since you hadn't filed a return. While I may be wrong, and there appears to be some differences of opinion in this thread, I suspect the only way for you to get satisfaction is to contest the IRS determination and go to Tax Court. (Or at least hire competent counsel to do the necessary research to support your positiion.)

Ira Smilovitz

Reply to
ira smilovitz

If you read 7502 a little further, you'll see:

"(2) Mailing requirements

This subsection shall apply only if?

(A) the postmark date falls within the prescribed period or on or before the prescribed date?

(i) for the filing (including any extension granted for such filing) of the return..."

The prescribed period for filing 1040/2010, assuming a six month extension to file, ended on October 15, 2011. The date you mailed the original return does not fall within the prescribed period or on or before the prescribed date for filing, hence postmark date, in your case, does not meet the provisions of the code section.

Reply to
paultry

However, 26 CFR 301.7502-1(f)

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may apply: (f) Claim for credit or refund on late filed tax return? (1) In general. Generally, an original income tax return may constitute a claim for credit or refund of income tax. See §

301.6402-3(a)(5). Other original tax returns can also be considered claims for credit or refund if the liability disclosed on the return is less than the amount of tax that has been paid. If section 7502 would not apply to a return (but for the operation of paragraph (f)(2) of this section) that is also considered a claim for credit or refund because the envelope that contains the return does not have a postmark dated on or before the due date of the return, section 7502 will apply separately to the claim for credit or refund if? (i) The date of the postmark on the envelope is within the period that is three years (plus the period of any extension of time to file) from the day the tax is paid or considered paid (see section 6513), and the claim for credit or refund is delivered after this three-year period; and (ii) The conditions of section 7502 are otherwise met. (2) Filing date of late filed return. If the conditions of paragraph (f)(1) of this section are met, the late filed return will be deemed filed on the postmark date. (3) Example. The rules of this paragraph (f) are illustrated by the following example: Example. (i) Taxpayer A, an individual, mailed his 2001 Form 1040, ?U.S. Individual Income Tax Return,? on April 15, 2005, claiming a refund of amounts paid through withholding during 2001. The date of the postmark on the envelope containing the return and claim for refund is April 15, 2005. The return and claim for refund are received by the Internal Revenue Service (IRS) on April 18, 2005. Amounts withheld in 2001 exceeded A's tax liability for 2001 and are treated as paid on April 15, 2002, pursuant to section 6513. (ii) Even though the date of the postmark on the envelope is after the due date of the return, the claim for refund and the late filed return are treated as filed on the postmark date for purposes of this paragraph (f). Accordingly, the return will be treated as filed on April 15, 2005. In addition, the claim for refund will be treated as timely filed on April 15, 2005. Further, the entire amount of the refund attributable to withholding is allowable as a refund under section 6511(b)(2)(A).
Reply to
paultry

I disagree. The 1040 he filed on 10/15/14 was a "claim for credit" and thus the mailing rule applies. I think the language you quote supports this.

Reply to
taxed and spent

never mind! There is language about registered mail, with the receipt date counting. And by regulations allowed under the code, the IRS has included certified mail. But not other types of mail, such as express mail, priority mail, etc.

Reply to
taxed and spent

What is it you disagree with? My posts indicate that, as a late filed return, the postmark rule does not apply, but as a claim, it does. Sounds like we are in agreement.

Reply to
paultry

ha ha - yes, we agree. I thought about your first post, returned to the computer and posted my reply to your second post, which if I had read would have revealed the further story.

Reply to
taxed and spent

I found the following material on a website belonging to Jack Townsend, who appears to be a tax or accounting professor somewhere in Texas, and I find it fascinating that the IRS itself admits to being baffled in their attempts to apply the statute of limitation rules to the real world, in their computers:

"[footnote] In exchanges on the Tax Prof List Serv on 6/23/10, the Tax Profs discussed the fact that the IRS instructions for filing a 1040X indicate that the 3 years is measured from the extended due date without any nuance for a return on extension filed prior to the extended due date. The IRS apparently recognizes that its computer systems are not up to the task of applying the complexity to recognize that the refund statute date closes in the example above on 7/1/05. See ECC 201321022 (5/2/13), reproduced at 2013 TNT 102-60 (5/25/13) (noting that, in this example, the IRS computers would key to the extended due date and generate a refund even if the refund claim is filed after 7/1/02). The IRS publication laments: "The section 6511 rules are so complicated that the system cannot currently be programmed to figure out every situation." Other complexities are also addressed in ECC 201321022. "

Has somebody read this ECC 201321022? If you could link to it, maybe it contains the answer I'm looking for.

Reply to
lotax

Try this link:

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If I was working your case, I'd want to see a transcript of account for the 2010 tax period. Though you filed an extension, the problem could be something as basic as the extension never being received/processed/posted to your account. The transcript would show the extension or lack thereof, the date of receipt of the original return as recorded by the IRS, and should show the refund statute expiration date as computed by the IRS. You're going to need that to pursue an appeal. I'd also want to know exactly what the claim rejection notice says.

Reply to
paultry

The ECC is irrelevant to your situation as it addresses claims filed by amended return after a return has been filed within the statute of limitations. It doesn't address the question of whether your initial claim was filed within the statute of limitations.

Ira

Reply to
ira smilovitz

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I was just about to say that if THIS seemingly trivial tax item is so complex and confusing, what about the REAL tax items? Our system is hopeless.

Reply to
taxed and spent

Since his initial claim was his initial 1040 return, he did file it within the statute of limitations. The question is whether it was too late to recover taxes which were paid, due to the limit on amount of credit or refund, based upon when the taxes were paid.

Reply to
taxed and spent

Now you're playing semantics. Technically, any original return is filed within the statute of limitations because the statute of limitations for assessment doesn't begin until a return is filed. The OP was all about getting his money back - that's the statute of limitations I'm addressing. He's beyond the two year period after the tax was paid and there was no original return filed before that period expired so there was no extension to three years from the date of filing available for a valid claim for refund.

Ira Smilovitz

Reply to
ira smilovitz

"playing semantics"?

You need to play this analysis step by step.

step 1: was the claim filed within the statute of limitations? Yes.

step 2: if yes, is there a limitation on the refund due to time limits? (3.5 years in this case, not 2 years). We have not heard from the OP on this, but it seems that all the tax paid was prior to 4/15/11, and thus treated as if paid on 4/15/11.

Reply to
taxed and spent

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