80 FR 43949 - Claims for Credit or Refund
DEPARTMENT OF THE TREASURY
Internal Revenue Service Federal Register Volume 80, Issue 142 (July 24, 2015)
Internal Revenue Service
Federal Register Volume 80, Issue 142 (July 24, 2015)
| Page Range | 43949-43952 | |
| FR Document | 2015-18119 |
[Federal Register Volume 80, Number 142 (Friday, July 24, 2015)] [Rules and Regulations] [Pages 43949-43952] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-18119] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 301 [TD 9727] RIN 1545-BI36 Claims for Credit or Refund AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. ----------------------------------------------------------------------- SUMMARY: This document contains final regulations for filing a claim for credit or refund. The regulations provide guidance to taxpayers generally as to the proper place to file a claim for credit or refund. The regulations are updated to reflect changes made by the Tax Reform Act of 1976, section 1210, the Internal Revenue Service Restructuring and Reform Act of 1998, and the Community Renewal Tax Relief Act of 2000. The regulations are further updated to reflect that the IRS may prescribe additional claim forms. DATES: Effective Date: These regulations are effective on July 24, 2015. Applicability Dates: For dates of applicability, see Sec. Sec. 301.6402-2(g), 301.6402-3(f) and 301.6402-4(b). FOR FURTHER INFORMATION CONTACT: Micah A. Levy, (202) 317-6832 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background These final regulations amend current regulations under section 6402 of the Internal Revenue Code (Code). Section 6402 of the Code authorizes the Secretary to make credits or refunds of overpayments. Section 6511 provides the limitations period within which a taxpayer must file a claim for credit or refund and restricts the ability of the Secretary to issue a credit or refund unless the claim is filed by the taxpayer within that period. Section 7422 prohibits the maintenance of a suit for refund until a claim has been duly filed with the Secretary. Currently, Sec. 301.6402-2(a)(2) provides generally that a claim for credit or refund must be filed with the service center serving the internal revenue district in which the tax was paid. These final regulations clarify that, unless otherwise directed, the proper place to file a claim for credit or refund is with the service center at which the taxpayer currently would be required to file a tax return for the type of tax to which the claim relates, irrespective of where the tax was paid or was required to have been paid. These final regulations remove outdated portions of Sec. 301.6402- 2 that provided rules for claims filed prior to April 15, 1968 and Sec. 301.6402-3 that provided special rules for claims for credit or refund of income taxes filed before July 1, 1976, and revises the reference in Sec. 301.6402-4 to reflect the threshold for referral to the Joint Committee on Taxation pursuant to section 6405. These final regulations do not affect Sec. 301.6402-3T as promulgated in Treasury Decision 9658 (79 FR 12880) (March 6, 2014). Other stylistic revisions were adopted solely to conform the regulations to modern drafting style and usage. On June 10, 2011, the IRS published a notice of proposed rulemaking (REG-137128-08) in the Federal Register (76 FR 34017). No request for a public hearing was received. The IRS received written and electronic comments responding to the notice of proposed [[Page 43950]] rulemaking. After consideration of the comments, the proposed regulations are adopted as amended by this Treasury decision. All comments are available at www.regulations.gov or upon request. Explanation of Provisions and Summary of Comments I. Electronic Filing Commentators suggested that the regulations should provide for electronic filing, when available. Although the final regulations do not explicitly refer to electronic filing, the final regulations instruct taxpayers to file a claim for credit or refund in a manner consistent with forms, form instructions, publications, and other guidance on the IRS Web site. To the extent that electronic filing is or becomes available for filing a claim for credit or refund, it will be described elsewhere--for example, in forms, form instructions, publications, or the IRS Web site. 2. Claims Unrelated to a Tax for Which a Return Is Required Commentators noted that some penalties are not related to any tax for which a return is required. These commentators observed that the instructions to Form 843, ``Claim for Refund and Request for Abatement,'' that taxpayers use to file a claim for credit or refund of penalties that are unrelated to any tax for which a return is required are unhelpful because they instruct taxpayers to file Form 843 with the service center in which the taxpayer would be required to file a current tax return for ``the tax to which your claim or request relates.'' For an assessable penalty that is unrelated to a particular tax, the notice containing or issued along with demand for payment would provide the proper address for filing a claim for credit or refund and the taxpayer should file a claim in accordance with any specific instructions contained therein. The locations at which the IRS processes the various forms for any given subset of taxpayers may change and the proper place to identify such locations is in the various forms, instructions, publications, and the IRS.gov Web site. These regulations appropriately cross-reference such authorities. 3. Protective and Informal Claims Commentators suggested that the regulations be amended to discuss protective claims and informal claims. Although not provided for in the Code, case law provides that protective claims may be filed to preserve a taxpayer's right to claim a refund when the taxpayer's right to the refund is contingent on future events and may not be determinable until after the statute of limitations expires. Case law also provides that a claim for refund that is technically deficient with respect to some formal claim requirement (that is, an ``informal'' claim) might nonetheless be a valid claim as long as it meets certain basic requirements (for example, even an informal claim must contain a written component). While the IRS has recognized both protective and informal claims in some circumstances, neither is within the scope of these regulations. 4. Authority To Make Refunds on Equitable Grounds Commentators suggested that Treas. Reg. sec. 301.6402-2(b)(2), which explains that the IRS lacks the authority to make a refund on equitable grounds, should include exceptions for sections 6015(f) and 6343(d). Those and other Code provisions allow the IRS to consider equitable factors in making certain determinations, such as whether a taxpayer is eligible for innocent spouse relief or whether a levy may be released. The equitable factors that the IRS may consider in these statutorily prescribed situations affect only whether the taxpayer has an overpayment or otherwise may be entitled to particular relief. Once an overpayment is determined, whether by taking equitable considerations into account or not, such overpayment may be refunded only if the taxpayer or IRS follows all of the statutory and administrative prerequisites required to allow and make a refund. See United States v. Clinton Elkhorn Mining Co., 553 U.S. 1 (2008). None of those equitable factors otherwise determine whether or how the IRS is to issue a refund. Section 6402, in turn, prescribes the treatment of overpayments and provides the regime under which the IRS may issue a refund. In other words, although equitable considerations may be taken into account under some Code sections in determining either the existence or amount of an overpayment, those sections do not provide any authority (equitable or statutory) to allow or make credits and refunds under section 6402. The statutory language of section 6402(a) provides that, if there is an overpayment, then the IRS shall refund that overpayment (subject to certain exceptions enumerated in the statute). The IRS has discretion to grant equitable relief from joint and several liability under section 6015(f) to a requesting spouse if, considering all of the facts and circumstances, it would be inequitable to hold the requesting spouse jointly and severally liable. In those cases in which the IRS does apply equitable factors to determine whether a taxpayer is in an overpayment situation, such as under section 6015(f), the IRS considers things such as (1) whether the taxpayer is divorced, (2) whether the tax liability is due to income of the non-requesting spouse, and (3) the health of the requesting spouse. See, Rev. Proc. 2013-34, 2013-43 IRB 397 (Sept. 16, 2013). When a requesting spouse is relieved of joint and several liability, relief will rarely result in an overpayment because equitable relief under section 6015(f) generally involves unpaid liabilities. As a result, in many cases in which the IRS determines that a requesting spouse is entitled to equitable relief, the IRS ceases collection activity against the requesting spouse for any due, but unpaid, tax liabilities. Nonetheless, when equitable relief does result in an overpayment, the requesting spouse may receive a refund by filing a claim for refund using a Form 8857, Request for Innocent Spouse Relief, that complies with section 6402. Thus, the equitable considerations in section 6015(f) relate to whether the requesting spouse is entitled to relief, not whether a resulting overpayment is refunded. Section 6343(d) provides for the return of levied property to a taxpayer in certain circumstances, including when, ``with the consent of the taxpayer or the National Taxpayer Advocate, the return of such property would be in the best interests of the taxpayer (as determined by the National Taxpayer Advocate) and the United States.'' Although section 6343(d) may allow the IRS to consider equitable factors in determining whether to return the property, the return of levied property does not affect the amount of a taxpayer's tax liability and will not result in an overpayment. Accordingly, if the IRS returns property under section 6343(d) and the taxpayer fails to pay the previously assessed liability for which the levy was made on the returned property, then the IRS may collect the liability again, administratively or otherwise. The refund provisions of section 6402 are only triggered once an overpayment exists and is established. Indeed, the section begins ``[i]n the case of any overpayment. . . .'' By presupposing the existence of an overpayment, the equitable factors that the IRS may have considered are not implicated or relevant in the determination of whether the overpayment is credited or refunded. Moreover, once the equitable factors have been used to establish the [[Page 43951]] taxpayer's ability to claim a refund, the amount of any overpayment is a purely mathematical calculation--no equitable factors exist at this stage. The final regulations continue to make clear that the IRS lacks the authority to refund on equitable grounds penalties or other amounts legally collected that comprise an overpayment. Special Analyses It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to the regulations and, therefore, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comments on its impact on small business, and no comments were received. Drafting Information The principal author of the regulations is Micah A. Levy, Office of the Associate Chief Counsel (Procedure & Administration). Mr. Levy can be reached at (202) 317-6832 (not a toll-free number). List of Subjects in 26 CFR Part 301 Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements. Adoption of Amendments to the Regulations Accordingly, 26 CFR part 301 is amended as follows: PART 301--PROCEDURE AND ADMINISTRATION 0 Paragraph 1. The authority citation for part 301 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * 0 Par. 2. Section 301.6402-2 is amended by: 0 1. Revising paragraphs (a)(2), (b)(2), (c), and (d). 0 2. Adding paragraph (g). The revisions and addition read as follows: Sec. 301.6402-2 Claims for credit or refund. (a) * * * (2) Except as provided in paragraph (b) of Sec. 301.6091-1 (relating to hand-carried documents), if a taxpayer is required to file a claim for credit or refund using a particular form, then the claim, together with appropriate supporting evidence, shall be filed in a manner consistent with such form, form instructions, publications, or other guidance found on the IRS.gov Web site. If a taxpayer is filing a claim in response to an IRS notice or correspondence, then the claim must be filed in accordance with the specific instructions contained in the notice or correspondence regarding the manner of filing. Any other claim not described in the preceding sentences generally must be filed with the service center at which the taxpayer currently would be required to file a tax return for the type of tax to which the claim relates or via the appropriate electronic portal. For rules relating to interest in the case of credits or refunds, see section 6611. For rules treating timely mailing as timely filing, see section 7502. For rules relating to the time for filing a claim when the last day falls on Saturday, Sunday, or a legal holiday, see section 7503. (b) * * * (2) The IRS does not have the authority to refund on equitable grounds penalties or other amounts legally collected. (c) Form for filing claim. If a particular form is prescribed on which the claim must be made, then the claim must be made on the form so prescribed. For special rules applicable to refunds of income taxes, see Sec. 301.6402-3. For provisions relating to credits and refunds of taxes other than income tax, see the regulations relating to the particular tax. All claims by taxpayers for the refund of taxes, interest, penalties, and additions to tax that are not otherwise provided for must be made on Form 843, ``Claim for Refund and Request for Abatement.'' (d) Separate claims for separate taxable periods. In the case of income and gift taxes, income tax withheld, taxes under the Federal Insurance Contributions Act, taxes under the Railroad Retirement Tax Act, and taxes under the Federal Unemployment Tax Act, a separate claim must be made for each return for each taxable period. * * * * * (g) Effective/applicability date. Paragraphs (a)(2), (b)(2), (c), and (d) of this section apply to claims for credit or refund filed on or after July 24, 2015. Paragraphs (a)(1), (b)(1), (e), and (f) of this section apply to claims for credit or refund filed before, on or after July 24, 2015. 0 Par. 3. Section 301.6402-3 is amended by: 0 1. Revising the introductory text of paragraph (a). 0 2. Removing and reserving paragraph (b). 0 3. Revising paragraphs (c) and (f). The revisions read as follows: Sec. 301.6402-3 Special rules applicable to income tax. (a) The following rules apply to a claim for credit or refund of income tax:-- * * * * * (b) [Reserved] (c) If the taxpayer is not required to show the tax on the form (see section 6014 and the accompanying regulations), the IRS will treat a properly filed income tax return as a claim for refund and such return will constitute a claim for refund within the meaning of section 6402 and section 6511 for the amount of the overpayment shown by the computation of the tax made by the IRS on the basis of the return. For purposes of the limitations period of section 6511, such claim will be treated as filed on the date the return is treated as filed. * * * * * (f) Effective/applicability date. (1) Paragraph (c) of this section, as revised, applies to claims for credit or refund filed on or after July 24, 2015. Paragraphs (a), (d), and (e) of this section apply to claims for credit or refund filed before, on or after July 24, 2015, except references in paragraph (e) to Form 8805 or other statements required under Sec. 1.1446-3(d)(2) of this chapter apply to partnership taxable years beginning after April 29, 2008. (2) [Reserved]. For further guidance, see Sec. 301.6402-3T(f)(2). 0 Par. 4. Section 301.6402-4 is revised to read as follows: Sec. 301.6402-4 Payments in excess of amounts shown on return. (a) If the IRS determines that the payments by the taxpayer that are made within the period prescribed for payment and before the filing of the return exceed the amount of tax shown on the return (for example, excessive estimated income tax payments or excessive withholding), the IRS may credit or refund such overpayment without awaiting examination of the completed return and without awaiting the filing of a claim for refund. The provisions of Sec. Sec. 301.6402-2 and 301.6402-3 are applicable to such [[Page 43952]] overpayment, and taxpayers should submit claims for refund (if the income tax return is not itself a claim for refund, as provided in Sec. 301.6402-3) to protect themselves in the event the IRS fails to make such determination and credit or refund. The provisions of section 6405 (relating to reports of refunds in excess of the statutorily prescribed threshold referral amount to the Joint Committee on Taxation) do not apply to the overpayments described in this section. (b) Effective/applicability date. The rules of this section apply to payments made on or after July 24, 2015. John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: July 8, 2015. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. 2015-18119 Filed 7-23-15; 8:45 am] BILLING CODE 4830-01-P
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operation of facilities at that location; each customer served using the facility Renewal Tax Relief Act of 2000. The
and during the past 12 months; regulations are further updated to reflect
(iii) The abandonment or replacement (iii) Any other facility that did or that the IRS may prescribe additional
will have no adverse impact on could now qualify for automatic claim forms.
customers’ certificated services. authorization as described in DATES:
* * * * * § 157.203(b), provided the certificate Effective Date: These regulations are
holder obtains the written consent of effective on July 24, 2015.
PART 157—APPLICATIONS FOR each customer served using the facility Applicability Dates: For dates of
CERTIFICATES OF PUBLIC during the past 12 months. applicability, see §§ 301.6402–2(g),
CONVENIENCE AND NECESSITY AND (b) * * * 301.6402–3(f) and 301.6402–4(b).
FOR ORDERS PREMITTING AND (2)(i) An auxiliary facility as FOR FURTHER INFORMATION CONTACT:
APPROVING ABANDONMENT UNDER described in § 2.55(a) of this chapter Micah A. Levy, (202) 317–6832 (not a
SECTION 7 OF THE NATURAL GAS when the abandonment: toll-free number).
ACT (A) Will exceed the cost limit in SUPPLEMENTARY INFORMATION:
§ 157.208(d) for activities under the
■ 3. The authority citation for part 157 prior notice provisions; Background
continues to read as follows: (B) Will have no adverse impact on These final regulations amend current
Authority: 15 U.S.C. 717–717z. customers’ certificated services; and regulations under section 6402 of the
■ 4. Amend § 157.202 by adding a (C) Cannot satisfy the right-of-way, Internal Revenue Code (Code). Section
sentence at the end of paragraph (b)(2)(i) facility site, and work space limitations 6402 of the Code authorizes the
and revising paragraph (b)(3) to read as for the pre-granted abandonment Secretary to make credits or refunds of
follows: authority in § 2.55(a)(3). overpayments. Section 6511 provides
(ii) A replacement facility that was or the limitations period within which a
§ 157.202 Definitions. could have been constructed under taxpayer must file a claim for credit or
* * * * * § 2.55(b) of this chapter, provided the refund and restricts the ability of the
(b) * * * current cost to construct the facilities Secretary to issue a credit or refund
(2)(i) * * * Finally, for purposes of would not exceed the cost limit in unless the claim is filed by the taxpayer
abandonment under § 157.216, eligible § 157.208(d) for activities under the within that period. Section 7422
facilities include auxiliary installations prior notice provisions and the prohibits the maintenance of a suit for
that do not qualify for pre-granted certificate holder obtains the written refund until a claim has been duly filed
abandonment authority under consent of each customer served using with the Secretary. Currently,
§ 2.55(a)(3) and replacement facilities the facility during the past 12 months; § 301.6402–2(a)(2) provides generally
constructed under § 2.55(b). (iii) Any other facility that did or that a claim for credit or refund must be
* * * * * could now qualify for prior notice filed with the service center serving the
(3) Facility, for purposes of authorization as described in internal revenue district in which the
construction under this subpart, does § 157.203(c), provided the certificate tax was paid. These final regulations
not include an auxiliary facility that holder obtains the written consent of clarify that, unless otherwise directed,
qualifies for construction under § 2.55(a) each customer served using the facility the proper place to file a claim for credit
of this chapter or a replacement facility during the past 12 months. or refund is with the service center at
that qualifies for construction under * * * * * which the taxpayer currently would be
§ 2.55(b). [FR Doc. 2015–17919 Filed 7–23–15; 8:45 am] required to file a tax return for the type
* * * * * BILLING CODE 6717–01–P of tax to which the claim relates,
■ 5. Amend § 157.216 by revising irrespective of where the tax was paid
paragraphs (a)(2) and (b)(2) to read as or was required to have been paid.
follows: DEPARTMENT OF THE TREASURY These final regulations remove
outdated portions of § 301.6402–2 that
§ 157.216 Abandonment. Internal Revenue Service provided rules for claims filed prior to
(a) * * * April 15, 1968 and § 301.6402–3 that
(2)(i) An auxiliary facility as 26 CFR Part 301 provided special rules for claims for
described in § 2.55(a) of this chapter [TD 9727] credit or refund of income taxes filed
when the abandonment: before July 1, 1976, and revises the
(A) Will not exceed the cost limit in RIN 1545–BI36 reference in § 301.6402–4 to reflect the
§ 157.208(d) for activities under the threshold for referral to the Joint
Claims for Credit or Refund
automatic provisions; Committee on Taxation pursuant to
(B) Will have no adverse impact on AGENCY: Internal Revenue Service (IRS), section 6405. These final regulations do
customers’ certificated services; and Treasury. not affect § 301.6402–3T as promulgated
(C) Cannot satisfy the right-of-way, ACTION: Final regulations. in Treasury Decision 9658 (79 FR
facility site, and work space limitations 12880) (March 6, 2014). Other stylistic
for the pre-granted abandonment SUMMARY: This document contains final revisions were adopted solely to
authority in § 2.55(a)(3); regulations for filing a claim for credit conform the regulations to modern
(ii) A replacement facility that was or or refund. The regulations provide drafting style and usage.
could have been constructed under guidance to taxpayers generally as to the On June 10, 2011, the IRS published
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§ 2.55(b) of this chapter, provided the proper place to file a claim for credit or a notice of proposed rulemaking (REG–
current cost to construct the facilities refund. The regulations are updated to 137128–08) in the Federal Register (76
would not exceed the cost limit in reflect changes made by the Tax Reform FR 34017). No request for a public
§ 157.208(d) for activities under the Act of 1976, section 1210, the Internal hearing was received. The IRS received
automatic provisions and the certificate Revenue Service Restructuring and written and electronic comments
holder obtains the written consent of Reform Act of 1998, and the Community responding to the notice of proposed
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rulemaking. After consideration of the right to claim a refund when the inequitable to hold the requesting
comments, the proposed regulations are taxpayer’s right to the refund is spouse jointly and severally liable. In
adopted as amended by this Treasury contingent on future events and may not those cases in which the IRS does apply
decision. All comments are available at be determinable until after the statute of equitable factors to determine whether a
www.regulations.gov or upon request. limitations expires. Case law also taxpayer is in an overpayment situation,
provides that a claim for refund that is such as under section 6015(f), the IRS
Explanation of Provisions and technically deficient with respect to considers things such as (1) whether the
Summary of Comments some formal claim requirement (that is, taxpayer is divorced, (2) whether the tax
I. Electronic Filing an ‘‘informal’’ claim) might nonetheless liability is due to income of the non-
be a valid claim as long as it meets requesting spouse, and (3) the health of
Commentators suggested that the
certain basic requirements (for example, the requesting spouse. See, Rev. Proc.
regulations should provide for
even an informal claim must contain a 2013–34, 2013–43 IRB 397 (Sept. 16,
electronic filing, when available.
written component). While the IRS has 2013). When a requesting spouse is
Although the final regulations do not
recognized both protective and informal relieved of joint and several liability,
explicitly refer to electronic filing, the
claims in some circumstances, neither is relief will rarely result in an
final regulations instruct taxpayers to within the scope of these regulations. overpayment because equitable relief
file a claim for credit or refund in a under section 6015(f) generally involves
manner consistent with forms, form 4. Authority To Make Refunds on
unpaid liabilities. As a result, in many
instructions, publications, and other Equitable Grounds
cases in which the IRS determines that
guidance on the IRS Web site. To the Commentators suggested that Treas. a requesting spouse is entitled to
extent that electronic filing is or Reg. sec. 301.6402–2(b)(2), which equitable relief, the IRS ceases
becomes available for filing a claim for explains that the IRS lacks the authority collection activity against the requesting
credit or refund, it will be described to make a refund on equitable grounds, spouse for any due, but unpaid, tax
elsewhere—for example, in forms, form should include exceptions for sections liabilities. Nonetheless, when equitable
instructions, publications, or the IRS 6015(f) and 6343(d). Those and other relief does result in an overpayment, the
Web site. Code provisions allow the IRS to requesting spouse may receive a refund
2. Claims Unrelated to a Tax for Which consider equitable factors in making by filing a claim for refund using a Form
a Return Is Required certain determinations, such as whether 8857, Request for Innocent Spouse
a taxpayer is eligible for innocent Relief, that complies with section 6402.
Commentators noted that some spouse relief or whether a levy may be Thus, the equitable considerations in
penalties are not related to any tax for released. The equitable factors that the section 6015(f) relate to whether the
which a return is required. These IRS may consider in these statutorily requesting spouse is entitled to relief,
commentators observed that the prescribed situations affect only not whether a resulting overpayment is
instructions to Form 843, ‘‘Claim for whether the taxpayer has an refunded.
Refund and Request for Abatement,’’ overpayment or otherwise may be Section 6343(d) provides for the
that taxpayers use to file a claim for entitled to particular relief. Once an return of levied property to a taxpayer
credit or refund of penalties that are overpayment is determined, whether by in certain circumstances, including
unrelated to any tax for which a return taking equitable considerations into when, ‘‘with the consent of the taxpayer
is required are unhelpful because they account or not, such overpayment may or the National Taxpayer Advocate, the
instruct taxpayers to file Form 843 with be refunded only if the taxpayer or IRS return of such property would be in the
the service center in which the taxpayer follows all of the statutory and best interests of the taxpayer (as
would be required to file a current tax administrative prerequisites required to determined by the National Taxpayer
return for ‘‘the tax to which your claim allow and make a refund. See United Advocate) and the United States.’’
or request relates.’’ For an assessable States v. Clinton Elkhorn Mining Co., Although section 6343(d) may allow the
penalty that is unrelated to a particular 553 U.S. 1 (2008). None of those IRS to consider equitable factors in
tax, the notice containing or issued equitable factors otherwise determine determining whether to return the
along with demand for payment would whether or how the IRS is to issue a property, the return of levied property
provide the proper address for filing a refund. Section 6402, in turn, prescribes does not affect the amount of a
claim for credit or refund and the the treatment of overpayments and taxpayer’s tax liability and will not
taxpayer should file a claim in provides the regime under which the result in an overpayment. Accordingly,
accordance with any specific IRS may issue a refund. In other words, if the IRS returns property under section
instructions contained therein. although equitable considerations may 6343(d) and the taxpayer fails to pay the
The locations at which the IRS be taken into account under some Code previously assessed liability for which
processes the various forms for any sections in determining either the the levy was made on the returned
given subset of taxpayers may change existence or amount of an overpayment, property, then the IRS may collect the
and the proper place to identify such those sections do not provide any liability again, administratively or
locations is in the various forms, authority (equitable or statutory) to otherwise.
instructions, publications, and the allow or make credits and refunds under The refund provisions of section 6402
IRS.gov Web site. These regulations section 6402. The statutory language of are only triggered once an overpayment
appropriately cross-reference such section 6402(a) provides that, if there is exists and is established. Indeed, the
authorities. an overpayment, then the IRS shall section begins ‘‘[i]n the case of any
refund that overpayment (subject to overpayment. . . .’’ By presupposing
3. Protective and Informal Claims
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certain exceptions enumerated in the the existence of an overpayment, the
Commentators suggested that the statute). equitable factors that the IRS may have
regulations be amended to discuss The IRS has discretion to grant considered are not implicated or
protective claims and informal claims. equitable relief from joint and several relevant in the determination of whether
Although not provided for in the Code, liability under section 6015(f) to a the overpayment is credited or
case law provides that protective claims requesting spouse if, considering all of refunded. Moreover, once the equitable
may be filed to preserve a taxpayer’s the facts and circumstances, it would be factors have been used to establish the
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taxpayer’s ability to claim a refund, the § 301.6402–2 Claims for credit or refund. this section apply to claims for credit or
amount of any overpayment is a purely (a) * * * refund filed before, on or after July 24,
mathematical calculation—no equitable (2) Except as provided in paragraph 2015.
factors exist at this stage. The final (b) of § 301.6091–1 (relating to hand- ■ Par. 3. Section 301.6402–3 is
regulations continue to make clear that carried documents), if a taxpayer is amended by:
the IRS lacks the authority to refund on required to file a claim for credit or ■ 1. Revising the introductory text of
equitable grounds penalties or other refund using a particular form, then the paragraph (a).
amounts legally collected that comprise claim, together with appropriate ■ 2. Removing and reserving paragraph
an overpayment. supporting evidence, shall be filed in a (b).
Special Analyses manner consistent with such form, form ■ 3. Revising paragraphs (c) and (f).
instructions, publications, or other The revisions read as follows:
It has been determined that this guidance found on the IRS.gov Web site.
Treasury decision is not a significant If a taxpayer is filing a claim in response § 301.6402–3 Special rules applicable to
regulatory action as defined in to an IRS notice or correspondence, then income tax.
Executive Order 12866, as the claim must be filed in accordance (a) The following rules apply to a
supplemented by Executive Order with the specific instructions contained claim for credit or refund of income
13563. Therefore, a regulatory in the notice or correspondence tax:—
assessment is not required. It has also regarding the manner of filing. Any * * * * *
been determined that section 553(b) of other claim not described in the (b) [Reserved]
the Administrative Procedure Act (5 preceding sentences generally must be (c) If the taxpayer is not required to
U.S.C. chapter 5) and the Regulatory filed with the service center at which show the tax on the form (see section
Flexibility Act (5 U.S.C. chapter 6) do the taxpayer currently would be 6014 and the accompanying
not apply to the regulations and, required to file a tax return for the type regulations), the IRS will treat a
therefore, a regulatory flexibility of tax to which the claim relates or via properly filed income tax return as a
analysis is not required. Pursuant to the appropriate electronic portal. For claim for refund and such return will
section 7805(f) of the Internal Revenue rules relating to interest in the case of constitute a claim for refund within the
Code, the notice of proposed rulemaking credits or refunds, see section 6611. For meaning of section 6402 and section
preceding these regulations were rules treating timely mailing as timely 6511 for the amount of the overpayment
submitted to the Chief Counsel for filing, see section 7502. For rules shown by the computation of the tax
Advocacy of the Small Business relating to the time for filing a claim made by the IRS on the basis of the
Administration for comments on its when the last day falls on Saturday, return. For purposes of the limitations
impact on small business, and no Sunday, or a legal holiday, see section period of section 6511, such claim will
comments were received. 7503. be treated as filed on the date the return
(b) * * * is treated as filed.
Drafting Information
(2) The IRS does not have the * * * * *
The principal author of the authority to refund on equitable grounds (f) Effective/applicability date. (1)
regulations is Micah A. Levy, Office of penalties or other amounts legally Paragraph (c) of this section, as revised,
the Associate Chief Counsel (Procedure collected. applies to claims for credit or refund
& Administration). Mr. Levy can be (c) Form for filing claim. If a filed on or after July 24, 2015.
reached at (202) 317–6832 (not a toll- particular form is prescribed on which Paragraphs (a), (d), and (e) of this
free number). the claim must be made, then the claim section apply to claims for credit or
must be made on the form so prescribed. refund filed before, on or after July 24,
List of Subjects in 26 CFR Part 301 For special rules applicable to refunds 2015, except references in paragraph (e)
Employment taxes, Estate taxes, of income taxes, see § 301.6402–3. For to Form 8805 or other statements
Excise taxes, Gift taxes, Income taxes, provisions relating to credits and required under § 1.1446–3(d)(2) of this
Penalties, Reporting and recordkeeping refunds of taxes other than income tax, chapter apply to partnership taxable
requirements. see the regulations relating to the years beginning after April 29, 2008.
particular tax. All claims by taxpayers (2) [Reserved]. For further guidance,
Adoption of Amendments to the for the refund of taxes, interest,
Regulations see § 301.6402–3T(f)(2).
penalties, and additions to tax that are
■ Par. 4. Section 301.6402–4 is revised
Accordingly, 26 CFR part 301 is not otherwise provided for must be
to read as follows:
amended as follows: made on Form 843, ‘‘Claim for Refund
and Request for Abatement.’’ § 301.6402–4 Payments in excess of
PART 301—PROCEDURE AND (d) Separate claims for separate amounts shown on return.
ADMINISTRATION taxable periods. In the case of income (a) If the IRS determines that the
and gift taxes, income tax withheld, payments by the taxpayer that are made
■ Paragraph 1. The authority citation taxes under the Federal Insurance within the period prescribed for
for part 301 continues to read in part as Contributions Act, taxes under the payment and before the filing of the
follows: Railroad Retirement Tax Act, and taxes return exceed the amount of tax shown
Authority: 26 U.S.C. 7805 * * * under the Federal Unemployment Tax on the return (for example, excessive
Act, a separate claim must be made for estimated income tax payments or
■ Par. 2. Section 301.6402–2 is each return for each taxable period. excessive withholding), the IRS may
rmajette on DSK2VPTVN1PROD with RULES
amended by: * * * * * credit or refund such overpayment
■ 1. Revising paragraphs (a)(2), (b)(2), (g) Effective/applicability date. without awaiting examination of the
(c), and (d). Paragraphs (a)(2), (b)(2), (c), and (d) of completed return and without awaiting
■ 2. Adding paragraph (g). this section apply to claims for credit or the filing of a claim for refund. The
The revisions and addition read as refund filed on or after July 24, 2015. provisions of §§ 301.6402–2 and
follows: Paragraphs (a)(1), (b)(1), (e), and (f) of 301.6402–3 are applicable to such
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![43952 Federal Register / Vol. 80, No. 142 / Friday, July 24, 2015 / Rules and Regulations
overpayment, and taxpayers should Building Ground floor, Room W12–140, 1.05–1 and 160.5; Department of
submit claims for refund (if the income 1200 New Jersey Avenue SE., Homeland Security Delegation No.
tax return is not itself a claim for refund, Washington DC 20590, between 9 a.m. 0170.1.
as provided in § 301.6402–3) to protect and 5 p.m., Monday through Friday, The Coast Guard was informed that
themselves in the event the IRS fails to except Federal holidays. on July 25, 2015, and July 26, 2015, an
make such determination and credit or FOR FURTHER INFORMATION CONTACT: If air show will take place on the Detroit
refund. The provisions of section 6405 you have questions on this temporary River in the vicinity of Detroit, MI. The
(relating to reports of refunds in excess final rule, contact or email PO1 Todd Captain of the Port Detroit has
of the statutorily prescribed threshold Manow, Prevention Department, Sector determined that the air show may pose
referral amount to the Joint Committee Detroit, Coast Guard; telephone 313– a significant risk to public safety and
on Taxation) do not apply to the 568–9580, or email Todd.M.Manow@ property.
overpayments described in this section. uscg.mil. If you have questions on
(b) Effective/applicability date. The viewing the docket, call Cheryl Collins, C. Discussion of Rule
rules of this section apply to payments Program Manager, Docket Operations, With the aforementioned hazards in
made on or after July 24, 2015. telephone 202–366–9826. mind, the Captain of the Port Detroit has
John Dalrymple, SUPPLEMENTARY INFORMATION: determined a temporary safety zone is
Deputy Commissioner for Services and Table of Acronyms necessary to ensure the safety of
Enforcement. spectators and vessels during the Red
Approved: July 8, 2015. DHS Department of Homeland Security Bull GRC air show. This safety zone will
Mark J. Mazur, FR Federal Register encompass U.S. navigable waters of the
NAD 83 North American Datum of 1983 Detroit River from the Belle Isle Bridge
Assistant Secretary of the Treasury (Tax
Policy). to position: 42°19′58.60″ N.,
A. Regulatory History and Information 083°0′38.47″ W. (NAD 83).
[FR Doc. 2015–18119 Filed 7–23–15; 8:45 am]
BILLING CODE 4830–01–P
The Coast Guard is issuing this Entry into, transiting, or anchoring
temporary final rule without prior within this safety zone is prohibited
notice and opportunity to comment unless authorized by the Captain of the
pursuant to authority under section 4(a) Port Detroit or his on-scene
DEPARTMENT OF HOMELAND
of the Administrative Procedure Act representative. The Captain of the Port
SECURITY
(APA) (5 U.S.C. 553(b)). This provision or his on-scene representative may be
Coast Guard authorizes an agency to issue a rule contacted via VHF Channel 16.
without prior notice and opportunity to
comment when the agency, for good D. Regulatory Analyses
33 CFR Part 165
cause, finds that those procedures are We developed this rule after
[Docket No. USCG–2015–0618] ‘‘impracticable, unnecessary, or contrary considering numerous statutes and
RIN 1625–AA00 to the public interest.’’ Under 5 U.S.C. executive orders related to rulemaking.
553(b)(B), the Coast Guard finds that Below we summarize our analyses
Safety Zone; Red Bull GRC Air Show, good cause exists for not publishing a based on these statutes and executive
Detroit River, Detroit, MI notice of proposed rulemaking (NPRM) orders.
with respect to this rule because doing
AGENCY: Coast Guard, DHS. 1. Regulatory Planning and Review
so would be impracticable and contrary
ACTION: Temporary final rule. to the public interest. The final details
This rule is not a significant
SUMMARY: The Coast Guard is of this event were not known to the
regulatory action under section 3(f) of
establishing a temporary safety zone on Coast Guard until there was insufficient
Executive Order 12866, Regulatory
the waters of the Detroit River in the time remaining before the event to
Planning and Review, as supplemented
vicinity of Detroit, MI. This zone is publish an NPRM. Thus, delaying the
by Executive Order 13563, Improving
intended to restrict and control the effective date of this rule to wait for a
Regulation and Regulatory Review, and
movement of vessels in a portion of the comment period to run would be both
does not require an assessment of
Detroit River. This zone is necessary to impracticable and contrary to the public
potential costs and benefits under
protect spectators and vessels from the interest because it would inhibit the
section 6(a)(3) of Order 12866 or under
hazards associated with an air show. Coast Guard’s ability to protect workers,
section 1 of Executive Order 13563. The
the surrounding public, and vessels
DATES: This rule is effective from 1:30 Office of Management and Budget has
from the hazards associated with the
p.m. on July 25, 2015 until 4:30 p.m. on not reviewed it under those Orders.
maritime air show.
July 26, 2015. It will be enforced from Under 5 U.S.C. 553(d)(3), the Coast We conclude that this rule is not a
1:30 p.m. to 4:30 p.m. each day on July Guard finds that good cause exists for significant regulatory action because we
25 and 26, 2015. making this temporary rule effective less anticipate that it will have minimal
ADDRESSES: Documents indicated in this than 30 days after publication in the impact on the economy, will not
preamble as being available in the Federal Register. For the same reasons interfere with other agencies, will not
docket are part of docket USCG–2015– discussed in the preceding paragraph, adversely alter the budget of any grant
0618 and are available online by going waiting for a 30 day notice period to run or loan recipients, and will not raise any
to www.regulations.gov, type the docket would be impracticable and contrary to novel legal or policy issues. The safety
number in the ‘‘SEARCH’’ box and click zone created by this rule will be
rmajette on DSK2VPTVN1PROD with RULES
the public interest.
‘‘SEARCH.’’ Click on Open Docket relatively small and enforced for a
Folder on the line associated with this B. Basis and Purpose relatively short time. Under certain
rulemaking. They are also available for The legal basis for the rule is the conditions, moreover, vessels may still
inspection or copying at the Docket Coast Guard’s authority to establish transit through the safety zone when
Management Facility (M–30), U.S. regulated navigation areas and limited permitted by the Captain of the Port or
Department of Transportation, West access areas: 33 U.S.C. 1231; 33 CFR his on-scene representative.
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Document Created: 2018-02-23 09:24:48
Document Modified: 2018-02-23 09:24:48
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final regulations. | |
| Dates | Effective Date: These regulations are effective on July 24, 2015. | |
| Contact | Micah A. Levy, (202) 317-6832 (not a toll-free number). | |
| FR Citation | 80 FR 43949 | |
| RIN Number | 1545-BI36 | |
| CFR Associated | Employment Taxes; Estate Taxes; Excise Taxes; Gift Taxes; Income Taxes; Penalties and Reporting and Recordkeeping Requirements |
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