Kwong v. United States (179 Fed. Cl. 382, Nov. 2025) refund/abatement claims

Note: 

1.  Prior to forwarding to Examination Classification, ensure the claim is complete and timely.

• must have a written component;

• must identify and describe the contingencies affecting the claim;

• is sufficiently clear and definite to alert the IRS as to the essential nature of the claim;

• must identify a specific year or years for which a refund is requested.

   

• Screen all Protective Claims for:

  • Statute timeliness,

    Refer to IRM 25.6.1.10.3.3, Claims for Credit or Refund – General Time Period for Submitting a Claim, for additional information.

  • Signatures.

    4.10.11.2.1.3 (09-04-2020)
    Claims for Refund - Timeliness
    IRC 6402, permits the IRS to make a refund within the applicable period of limitations. IRC 6511 governs the time period for filing a claim as well as the amount that may be recovered.
    In general, a claim is filed on the date it is received at the place designated for filing by the IRS. See IRM 25.6.1.6.15, When a Document Is Treated As Filed Under the IRC, for the rules that may create a different filing date (e.g., Saturday, Sunday, and Legal Holiday rule). The hand-delivery of an amended return to an examiner who is examining the taxpayer’s returns may constitute the filing of a claim. See IRM 25.6.1.10.3.3.1.3, End of the Filing Period, for additional information.
    IRC 6511(a) provides the general rule that a claim for credit or refund must be filed within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever is later. IRC 6511(b) limits the amount of the credit or refund to the amount paid within the 3 year (2 year) period before the date of a claim. See IRM 4.10.11.5.2, for further discussion on the timeliness requirements for claims for refund.
    In some instances, a claim may be filed by the taxpayer in anticipation of an expected change in the tax law, other legislation, regulations, case law, or other contingency. A "protective claim" is a claim for credit or refund filed by the taxpayer to preserve the right to pursue a refund based on the resolution of an issue contingent on future events that may not be determinable until after the refund statute has expired. Taxpayers file protective claims to ensure they meet the timeliness requirement. With regard to the requirements of form and content, a protective claim must be in writing, include the taxpayer’s name, address, TIN and signature, identify the contingency affecting the claim, be sufficiently clear and definite to alert the IRS as to the essential nature of the claim, and identify the specific year(s) for which the refund is sought. The exact amount of refund requested may not be known at the time the claim is filed. See IRM 25.6.1.10.3.2.5, Protective Claims, for additional information.
    Note: Protective claims filed with the campus are generally forwarded to Technical Services (through PSP) for suspense. The Technical Services Protective Claims Coordinator suspends the case until the contingency is resolved. At that point, if additional information is needed, the case is sent to a group (through PSP) for examination of the claim for refund. Other than noting the timeliness requirement was met by the filing of the protective claim prior to the RSED, there are no differences in how the examiner works the claim for refund. In the event a protective claim is initially filed with the examiner, the examiner should contact their local Technical Services Protective Claims Coordinator for guidance.

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