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The request for a hearing was accompanied by a written
request for a refund, using Form 1040X, Amended U.S. Individual
Income Tax Return, for the additional $218,152 paid with the
amended return. The request for refund stated that
Taxpayer filed form 1040X and paid $218,152 of
additional taxes for 1990 in September 1997. This was
subsequent to [the] tolling of statute of limitations
and as such was not valid. This form is being
completed as a claim for refund. It is being filed
within the 2 year period of remittance of the erroneous
tax payment (IRC 6511(b)(2)(B)).
A Notice of Determination Concerning Collection Action(s)
Under Section 6320 and/or 6330 was sent to petitioners on
September 8, 1999. The Appeals officer determined that
petitioners
raised the issue of the timely filing of your court
ordered amended return in your 2nd amended return which
sought refund of the tax paid with the court ordered
amended return. The statute of limitations had been
extended by three years to a six year statute due to an
amount of unreported income which was in excess of 25%
of your AGI. Your court ordered amended return was
filed on September 8, 1997, exactly two days prior to
the six year statute of September 10, 1997. You have
no basis for the refund of tax paid with your court
ordered amended return, and accordingly, no basis for
relief from the interest charged on such deficiency.
You requested a Collection Due Process hearing. Your
representative appeared at the hearing and indicated
that you felt that the proposed levies were intrusive
because you had filed your court ordered amended return
after the statute of limitations had expired. If the
statute of limitations had expired it would mean that
the payment you made when the amended return was filed
was a voluntary payment and there was no basis for
charging interest on the voluntary payments.
Additionally, you sought refund of tax paid with such
court ordered amended return in the amount of $218,152.
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