Perry C. Krape - Page 7

                                        - 7 -                                         
               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