Attorney-at-Law

LOOK BACK? LOOK OUT

In Uncategorized on 08/11/2021 at 18:49

I’ve blogged the lookback rules any number of times. Amr M. Mohsen, 2021 T. C. Memo. 99, filed 8/11/21, took fourteen (count ’em, fourteen) years to file his delinquent return. In the meantime, IRS gave Amr a SFR. AMR had timely asked for an extension to file for that year, and sent in $43K. IRS applied the payment to the tax Amr owed for that year, and sent the rest to excess collection.

Then Amr filed eleven (count ’em, eleven) years late in the same year, and wanted the $43K applied to the second late year, and the net amount refunded, as he didn’t owe for the first late year. He claims the check was a deposit in the nature of a cash bond.

Clear? Thought not.

Amr never noted on the check what he wanted.

Judge Kerrigan begins with the truism that Tax Court can apply a credit, if at all, if the credit “indubitably” exists. 2021 T. C. Memo. 99, at p. 9.

There isn’t. All Amr had was a claim for a credit. “At the time of petitioner’s CDP hearing…respondent had already denied his refund claim on several occasions. Petitioner has a mere claim of an overpayment for [first late year]. Accordingly, we lack jurisdiction to decide his claim for refund for a year that is not before us.” 2021 T. C. Memo. 99, at p. 10.

It gets worse.

“Even if we had jurisdiction, petitioner would not be entitled to a refund because he has failed to meet the threshold requirements for claiming a refund. Petitioner contends that his remittance of $43,000 in 2002 was a deposit in the nature of a cash bond. While section 6511 sets a period of limitation on claims for credit or refund of overpayments of tax, this period of limitation does not apply to a deposit in the nature of a cash bond. Rev. Proc. 84-58, 1984-2 C.B. 501, which has been superseded but was in effect for the year when petitioner mailed the check, states that a taxpayer may request the return of all or part of a deposit at any time before the Service is entitled to assess the tax. According to petitioner’s argument his refund claim was thus timely, and his remittance of $43,000 would be an available credit to apply towards his 2004 tax liability.

“Petitioner submitted the $43,000 check attached to a Form 4868. His remittance was a payment of tax and not a deposit in the nature of a cash bond. Accordingly, the period of limitation under section 6511 applies.” 2021 T. C. Memo. 99, at pp. 10-11. (Citation omitted).

And that’s the three-year lookback. But the three years began when Amr filed his return; the SFR isn’t a return for lookback purposes. And Amr paid thirteen years before he filed his late return.

Takeaway- Check out the current deposit rules before you make any payment. Or else, if you miss the lookback, look out!

Note I can’t link to the text of this opinion, because the Genius Baristas or the 18Fs or whoever is running this shambolic schemozzle called DAWSON has blocked the entire docket, notwithstanding this opinion was just published.

 

 

 

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