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A properly executed individual * * * income tax return
* * * shall constitute a claim for refund or credit if
it contains a statement setting forth the amount
determined as an overpayment and advising whether such
amount shall be refunded to the taxpayer or shall be
applied as a credit against the taxpayer’s estimated
income tax for the taxable year immediately succeeding
the taxable year for which such return * * * is filed.
* * *
The delinquent return does not meet the above criteria for a
formal refund claim with respect to the overpayment at issue.
The delinquent return makes no mention of the amount the parties
now agree constitutes an overpayment and does not contain any
statements regarding the basis for such overpayment.
Petitioner also argues that the delinquent return forms the
basis for an informal refund claim. As petitioner correctly
notes in his objection to respondent’s motion:
It is well established that a writing which does not
qualify as a formal refund claim nevertheless may toll
the period of limitations applicable to refunds if (1)
the writing is delivered to the Service before the
expiration of the applicable period of limitations, (2)
the writing in conjunction with its surrounding
circumstances adequately notifies the Service that the
taxpayer is claiming a refund and the basis therefor,
and (3) either the Service waives the defect by
considering the refund claim on its merits or the
taxpayer subsequently perfects the informal refund
claim by filing a formal refund claim before the
Service rejects the informal refund claim.
Jackson v. Commissioner, supra (and the cases cited therein).
The determination of whether an informal refund claim has been
made depends on the particular circumstances of the case, and the
relevant question is whether the Commissioner knew or should have
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Last modified: November 10, 2007