In Dougherty Electric, Inc. v. United States, ___
F.4th ___ (Fed. Cir. 2026), FC here
and GS here [to come], the taxpayer timely filed a letter to the IRS titled
“PROTECTIVE CLAIM FOR REFUND.” the letter was processed as a claim for refund
for the issue identified in the letter. The taxpayer later filed another letter
outside the refund claim period called a “MODIFIED PROTECTIVE CLAIM FOR
REFUND,” which stated a new issue not asserted in the original letter. The IRS
requested more information and that the taxpayer file Forms 843 for each claim.
The taxpayer filed Forms 843 for the two claims. The IRS denied both claims.
The taxpayer sued for refund in the Court of Federal Claims. Applying § 7422(a)
prohibition of a refund suit where a formal claim for refund has not been
filed, the Court (i) sustained the first timely filed protective claim as an informal claim that had been
“rectified” by filing the Form 843 before the IRS denied the claim; and (ii) rejected the
second untimely filed protective claim, since it was a different claim that was
untimely.
In the course of the decision, the Court clarified (Slip Op. 14-17) it’s precedent in Computervision Corp. v. United States, 445 F.3d 1355 (Fed. Cir. 2006) that the timely filed claim may be an informal claim that is not formal claim for refund on the required form, such as Form 843; rather it can be a timely filed informal written claim (e.g., by letter) that can then be “rectified” by filing the formal claim before the IRS denies the claim.
