Friday, March 22, 2013

Availability of Jack's Federal Tax Procedure Book (3/22/13)

I have posted my Student Edition of my Federal Tax Procedure book on SSRN here.  The Student Edition has no footnotes and includes only the key statutory provisions and other authorities in the text.  Anyone may download that edition free here.

I also offer for purchase an footnoted edition suitable for practitioners.  The text is the same in both editions.  The footnotes contain citations to authority in support of the statements in the text and further discussion of nuance.  By way of contrast, the 2013 Student Edition is 533 pages, with (obviously) no footnotes.  The 2013 Practitioner Edition is 726 pages, with 2,336 footnotes.  This Practitioner Edition is available for purchase here.

By way of example, the following includes the text of the discussion on informal refund claims which is in both editions and the footnotes for that text which is in the practitioner edition only:

(2) Informal Claims.
The statute requires a claim for refund.  Administrative necessity reflected in the regulations requires that the claim be formally presented.  Accordingly, claims should be presented with the proper forms (discussed above) and, where required by procedures, with any required accompanying information. n731  However, from time to time, courts will recognize informal claims as satisfying the statutory predicate for a claim for refund where the taxpayer has in fact presented a claim to the IRS and, in the court's view, the IRS did or should have considered the claim.  These cases are rare and are driven by unusual facts and equities. n732
Broadly speaking, the components of an informal claim are:  (1) the IRS was on actual or constructive notice that the taxpayer was making a claim; (2) just as with a formal claim, the claim must adequately advise the IRS of the legal and factual basis for the claim; and (3) the claim must have a written component. n733  Some courts add the requirement that the IRS have either considered the informal claim or otherwise lead the taxpayer to n734 believe that the claim was sufficient.  Simply because the IRS may have had somewhere in the system information indicating that the taxpayer might claim a refund does not meet the requirement for a claim. n735  The taxpayer must make the claim, even if informal, and there must be no doubt that he or she is making a claim.  n736 And, finally, the informal claim must be “filed” within the applicable statute of limitations. n737  These are often fact intensive inquiries, ultimately resolved by common sense and fairness. n738
For present purposes, I will expect you to know two things:  (1) you should always present your claims on a proper form for claiming the refund your client seeks and (2) if for some reason your client did not so present the claim, you should review the facts, with particular attention to whether the claim was informally presented to and considered by the IRS and the cases dealing with informal claims, to see if you can extract victory from the jaws of defeat. 
n731 See Abston v. Commissioner, ___ F.3d ___, 2012 U.S. App. LEXIS 18492 (8th Cir. 2012) (denying a timely claim for refund seeking to invoke the suspension of the statute of limitations under § 6511(h) (i) because the taxpayer did not provide with the claim “proof of [a disabling impairment] is furnished in such form and manner as the Secretary may require" and (ii) the IRS required by Revenue Procedure a particular format for such proof, which the taxpayer did not submit; held there was no compliance, hence the issue of substantial compliance was not reached).
n732 Judge Posner has noted: “One office of the judge-made informal-claim doctrine is to plug that gap by excusing harmless noncompliance with the formalities prescribed for refund claims by the Treasury regulation.”  BCS Financial Corporation v. United States, 118 F.3d 522 (7th Cir. 1997).
n733 For two good recent discussions and applications of these informal claim requirements, see e.g., Kaffenberger v. United States, 314 F.3d 944 (8th Cir. 2003) and Mobil Corporation v. United States, 67 Fed. Cl. 708 (2005).  The Court in Kaffenberg found, inter alia, that the written component of the requirements was imbedded in Form 4868 which included application of the amounts of the claimed refund toward the following year’s taxes.  The IRS has acquiesced in the  portion of the opinion applying the informal claim for refund requirements.  See acquiescence on this issue in 2004-35 IRB 1, reproduced at 2004 TNT 171-4.  The Court in Mobil Corporation, found a viable informal claim as to some but not all claims.  See also Greene-Thapedi v. United States, 549 F.3d 530 (7th Cir. 2008), as to the written component.
n734 Nick’s Cigarette City, Inc. v. United States, 531 F.3d 516 (7th Cir. 2008), citing Kikalos v. United States, 479 F.3d 522, 525 (7th Cir. 2007).
n735 BCS Financial Corporation v. United States, 118 F.3d 522, 524-5 (7th Cir. 1997) (citing Miller v. United States, 949 F.2d 708, 712 (4th Cir. 1991)).
n736 Bauer v. United States, 594 F.2d 44, 47 (5th Cir. 1979).  The Court of Federal Claims expounded in Mobil Corporation v. United States, 67 Fed. Cl. 708, 717 (2005) (citations omitted and quotations omitted for readability):
It is well-established that the basic underlying principle [of an informal claim] is the necessity to put the [IRS] on notice of what the taxpayer is claiming and that he is in fact making a claim for refund.  It is not enough that the Internal Revenue Service have in its possession information from which it might deduce that the taxpayer is entitled to, or might desire, a refund; nor is it sufficient that a claim involving the same ground has been filed for another year or by a different taxpayer.
n737 Furst v. United States, 678 F.2d 147, 151 (Ct. Cl. 1982).
n738 See e.g., Mobil Corporation v. United States, 67 Fed. Cl. 708 (2005).

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