§7422 — Civil actions for refund
144 cases·28 followed·3 distinguished·2 questioned·7 overruled·104 cited—19% support
Statute Text — 26 U.S.C. §7422
No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.
Such suit or proceeding may be maintained whether or not such tax, penalty, or sum has been paid under protest or duress.
A suit against any officer or employee of the United States (or former officer or employee) or his personal representative for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected shall be treated as if the United States had been a party to such suit in applying the doctrine of res judicata in all suits in respect of any internal revenue tax, and in all proceedings in the Tax Court and on review of decisions of the Tax Court.
The credit of an overpayment of any tax in satisfaction of any tax liability shall, for the purpose of any suit for refund of such tax liability so satisfied, be deemed to be a payment in respect of such tax liability at the time such credit is allowed.
If the Secretary prior to the hearing of a suit brought by a taxpayer in a district court or the United States Court of Federal Claims for the recovery of any income tax, estate tax, gift tax, or tax imposed by chapter 41, 42, 43, or 44 (or any penalty relating to such taxes) mails to the taxpayer a notice that a deficiency has been determined in respect of the tax which is the subject matter of taxpayer’s suit, the proceedings in taxpayer’s suit shall be stayed during the period of time in which the taxpayer may file a petition with the Tax Court for a redetermination of the asserted deficiency, and for 60 days thereafter. If the taxpayer files a petition with the Tax Court, the district court or the United States Court of Federal Claims, as the case may be, shall lose jurisdiction of taxpayer’s suit to whatever extent jurisdiction is acquired by the Tax Court of the subject matter of taxpayer’s suit for refund. If the taxpayer does not file a petition with the Tax Court for a redetermination of the asserted deficiency, the United States may counterclaim in the taxpayer’s suit, or intervene in the event of a suit as described in subsection (c) (relating to suits against officers or employees of the United States), within the period of the stay of proceedings notwithstanding that the time for such pleading may have otherwise expired. The taxpayer shall have the burden of proof with respect to the issues raised by such counterclaim or intervention of the United States except as to the issue of whether the taxpayer has been guilty of fraud with intent to evade tax. This subsection shall not apply to a suit by a taxpayer which, prior to the date of enactment of this title, is commenced, instituted, or pending in a district court or the United States Court of Federal Claims for the recovery of any income tax, estate tax, or gift tax (or any penalty relating to such taxes).
A suit or proceeding referred to in subsection (a) may be maintained only against the United States and not against any officer or employee of the United States (or former officer or employee) or his personal representative. Such suit or proceeding may be maintained against the United States notwithstanding the provisions of section 2502 of title 28 of the United States Code (relating to aliens’ privilege to sue) and notwithstanding the provisions of section 1502 of such title 28 (relating to certain treaty cases).
If a suit or proceeding brought in a United States district court against an officer or employee of the United States (or former officer or employee) or his personal representative is improperly brought solely by virtue of paragraph (1), the court shall order, upon such terms as are just, that the pleadings be amended to substitute the United States as a party for such officer or employee as of the time such action commenced, upon proper service of process on the United States. Such suit or proceeding shall upon request by the United States be transferred to the district or division where it should have been brought if such action initially had been brought against the United States.
With respect to any taxable event, payment of the full amount of the first tier tax shall constitute sufficient payment in order to maintain an action under this section with respect to the second tier tax.
For purposes of subparagraph (A), the terms “taxable event”, “first tier tax”, and “second tier tax” have the respective meanings given to such terms by section 4963.
No suit may be maintained under this section for the credit or refund of any tax imposed under section 4941, 4942, 4943, 4944, 4945, 4951, 4952, 4955, 4958, 4971, or 4975 with respect to any act (or failure to act) giving rise to liability for tax under such sections, unless no other suit has been maintained for credit or refund of, and no petition has been filed in the Tax Court with respect to a deficiency in, any other tax imposed by such sections with respect to such act (or failure to act).
For purposes of this section, any suit for the credit or refund of any tax imposed under section 4941, 4942, 4943, 4944, 4945, 4951, 4952, 4955, 4958, 4971, or 4975 with respect to any act (or failure to act) giving rise to liability for tax under such sections, shall constitute a suit to determine all questions with respect to any other tax imposed with respect to such act (or failure to act) under such sections, and failure by the parties to such suit to bring any such question before the Court shall constitute a bar to such question.
No action or proceeding may be brought in the United States Court of Federal Claims for any refund or credit of a penalty imposed by section 6700 (relating to penalty for promoting abusive tax shelters, etc.) or section 6701 (relating to penalties for aiding and abetting understatement of tax liability).
The district courts of the United States and the United States Court of Federal Claims shall not fail to have jurisdiction over any action brought by the representative of an estate to which this subsection applies to determine the correct amount of the estate tax liability of such estate (or for any refund with respect thereto) solely because the full amount of such liability has not been paid by reason of an election under section 6166 with respect to such estate.
This subsection shall apply to any estate if, as of the date the action is filed—
no portion of the installments payable under section 6166 have been accelerated;
all such installments the due date for which is on or before the date the action is filed have been paid;
there is no case pending in the Tax Court with respect to the tax imposed by section 2001 on the estate and, if a notice of deficiency under section 6212 with respect to such tax has been issued, the time for filing a petition with the Tax Court with respect to such notice has expired; and
no proceeding for declaratory judgment under section 7479 is pending.
If the court redetermines under paragraph (1) the estate tax liability of an estate, no part of such liability which is disallowed by a decision of such court which has become final may be collected by the Secretary, and amounts paid in excess of the installments determined by the court as currently due and payable shall be refunded.
For provisions relating generally to claims for refund or credit, see chapter 65 (relating to abatements, credit, and refund) and chapter 66 (relating to limitations).
For duty of United States attorneys to defend suits, see
section 507 of Title 28
of the United States Code.
For jurisdiction of United States district courts, see
section 1346 of Title 28
of the United States Code.
For payment by the Treasury of judgments against internal revenue officers or employees, upon certificate of probable cause, see
section 2006 of Title 28
of the United States Code.
Treasury Regulations
- Treas. Reg. §Treas. Reg. §301.7422-1 Special rules for certain excise taxes imposed by chapter 42 or 43
- Treas. Reg. §Treas. Reg. §301.7422-1(a) Finality of refund proceeding.
- Treas. Reg. §Treas. Reg. §301.7422-1(b) Right to bring action.
- Treas. Reg. §Treas. Reg. §301.7422-1(c) Limitation on suit for refund.
- Treas. Reg. §Treas. Reg. §301.7422-1(d) Final determination of issues.
- Treas. Reg. §Treas. Reg. §301.7422-1(e) Definitions.
144 Citing Cases
We express no opinion on the correctness of this determination.
Ifthe Secretary ultimately disallows an AAR filed pursuant to section 6227(d), depending on the action taken by the Secretary, the partner may file a refund claim or initiate a civil action for refund pursuant to section 7422.
Ifthe Secretary ultimately disallows an AAR filed pursuant to section 6227(d), depending on the action taken by the Secretary, the partner may file a refund claim or initiate a civil action for refund pursuant to section 7422.
Ifthe Secretary ultimately disallows an AAR filed pursuant to section 6227(d), depending on the action taken by the Secretary, the partner may file a refund claim or initiate a civil action for refund pursuant to section 7422.
Ifthe Secretary ultimately disallows an AAR filed pursuant to section 6227(d), depending on the action taken by the Secretary, the partner may file a refund claim or initiate a civil action for refund pursuant to section 7422.
13 That approach failing, the employee may institute a refund suit pursuant to section 7422 with either the appropriate United States District~Court or the United States Court of Federal Claims .
he ground that petitioners could not be deemed to have paid the taxes that were the subject of their refund claim inasmuch as "approval of a credit from overpayment by the Internal Revenue Service is a prerequisite to filing suit for a refund under section 7422". See 26 U.S.C. sec. 7422(d) (1994). On January 31, 2002, the District Court filed an Order dismissing petitioners' refund action for lack of jurisdiction based on the prior Order and Findings and Recommendation of the magistrate judge. O
at 1499), and that the remote possibility of a dismissal for untimeliness having preclusive effect in a section 7422 refund suit “does little to bolster the IRS’s case for the deadline being jurisdictional,” Culp v.
See 26 U.S.C. § 7459(d).” The Third Circuit discounted the significance of this statutory context because it had been led to believe that the preclusive effect is rarely implicated. Citing an amicus, it suggested that the preclusive effect of section 7459(d) is a mere “theoretical possibility [that] seems seldom, if ever, to occur, see Cent
S collection and attempt a “collection due process” hearing under section 6330 (or an equivalent hearing before the IRS’s Independent Office of Appeals), or he may pay the tax, request a refund, and, if his claim is not allowed, sue for refund under section 7422. 22 Rightly construed, the two statutes work harmoniously in tandem. Section 6213(a) gives the taxpayer the unilateral power, merely by filing a timely petition, to halt the deficiency assessment process until the Tax Court enters decisi
7422 (governing civil actions for refund). Finding no abuse ofdiscretion in the SO's handling ofthis issue, we will grant summaryjudgment for respondent and sustain the proposed collection action. To implement the foregoing, An appropriate order and decision will be entered for respondent.
sec. 1346 (2000). Alternatively, ifthe IRS commences collection action against him, he can seek review in this Court following a CDP hearing. M sec. 6330(d)(1); Gardner v. Commissioner, 145 T.C. __ (Aug. 26, 2015); Williams v. Commissioner, 131 T.C. 54, 58 (2008). - 12 - [*12] II. Interlocutory Appeal Section 7482(a)(2)(A) per
sec. 1346 (2000). Alternatively, ifthe IRS commences collection action against him, he can seek review in this Court following a CDP hearing. M sec. 6330(d)(1); Gardner v. Commissioner, 145 T.C. __ (Aug. 26, 2015); Williams v. Commissioner, 131 T.C. 54, 58 (2008). - 12 - [*12] II. Interlocutory Appeal Section 7482(a)(2)(A) per
sec. 1346 (2000). Alternatively, ifthe IRS commences collection action against him, he can seek review in this Court following a CDP hearing. M sec. 6330(d)(1); Gardner v. Commissioner, 145 T.C. __ (Aug. 26, 2015); Williams v. Commissioner, 131 T.C. 54, 58 (2008). - 12 - [*12] II. Interlocutory Appeal Section 7482(a)(2)(A) per
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
7422(h); see also, e.g., McCann v. United States, 105 Fed. Cl. 120, 122 (2012), - 59 - affd, 2012 WL 6839761 (Fed. Cir. Nov. 27, 2012). That is a legislative choice that we have no authority to mitigate. GALE, HOLMES, BUCH, LAUBER, andNEGA, H., agree withthis concurring opinion. - 60 - GOEKE, J., concurring: I agree with the majority's reaso
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
And even then, any prior partnership item determination is conclusive. Sec. 6230(c)(4); see also New Millennium Trading, L.L.C. v. Commissioner, 131 T.C. 275, 280 (2008). 7This rule is now set forth in permanent regulations at sec. 301.6231(a)(6)- 1(a)(2), Proced. & Admin. Regs. which apply to taxable years beginning on or after Octob
n concerning the "underlying tax liability", are derived entirely from section 6330. But for that section, a taxpayer 10 liable for an assessed income tax generally could dispute it only by paying it and instituting suit for a refund. See generally sec. 7422; 28 U.S.C. sec. 1346(a)(1) (2006). The 30-day petitioning period provided in section 6330(d)(1) is thus the exclusive, statutorily prescribed petitioning period for Tax Court review ofa "determination" concerning an "underlying tax liability
7422; see also Henry Randolph Consulting v. Commissioner, 112 T.C. 1, 4 (1999).. Under section 6330(d)(1)(A), we havejurisdiction over the determination made by the Appeals Office, and ourjurisdiction is defined by the scope ofthat determination. Freije v. Commissioner, 125 T.C. 14, 25 (2005). Petitioner's petition includes a tax period not ad
spect to the partnership-level adjudication of partnership items and penalties relating to adjustment of partnership items. Relitigating these items in a partner-level prepayment forum is, thus,,) statutorily estopped. Subject to the requirements of sec. 7422(h), a refund forum may be "allowed to assert any partner levelÍdefenses that may apply or to challenge the amount of the compu%ational adjustment." Sec. 6230(c) (4). - 34 - C. Conclusion Pursuant to section 6230(a) (1), the penalty may be d
ondent seeks to collect." We therefore sustain respondent's determination that collection may proceed by way of levy. s Whether petitioner might be able to do so in a refund action in a U.S. District Court or in the U.S. Court of Federal Claims, see sec. 7422; McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970), is a matter that we need not (and do not) address, as the Tax Court lacks jurisdiction over that type of action, cf. Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006). - 10 - Conclusi
sec. 1346 (2006). In addition, we would presumably have jurisdiction to redetermine a liability challenge asserted by petitioners in a collection due process hearing. See sec. 6330(d)(1); Williams v. Commissioner, 131 T.C. 54, 58 n.4 (2008); Callahan v. Commissioner, 130 T.C. 44, 48 (2008); D & M Painting Corp. v. United States
Additionally, 6Schweiker v. Chilicky, 487 U.S. 412, 423 (1988); see the Court of Appeals for the Fifth Circuit’s decision in Baddour, Inc. v. United States, 802 F.2d 801, 807-808 (5th Cir. 1986), the court to which an appeal in this case would normally lie absent a stipulation to an appeal elsewhere; see also Natl. Commodity and Barter A
6532(a) (a taxpayer may file a refund suit under section 7422 after 6 months from the date of filing a claim for refund and within 2 years from the date of mailing of a notice of disallowance).
es, 336 F.3d 419 (5th Cir. 2003), another case cited by Judge Thornton which refers to the Bowen discussion of APA sec. 704, the court merely made the technical point that the taxpayer’s interest abatement claim was cognizable as a refund suit under sec. 7422 rather than as a separate cause of action under the APA. Id. at 427 n.9. - 51 - new jurisdiction to review section 6015(f) adjudications: “[A] [s]ubsequent statute may not be held to supersede or modify * * * chapter 7 * * * except to the e
es, 336 F.3d 419 (5th Cir. 2003), another case cited by Judge Thornton which refers to the Bowen discussion of APA sec. 704, the court merely made the technical point that the taxpayer’s interest abatement claim was cognizable as a refund suit under sec. 7422 rather than as a separate cause of action under the APA. Id. at 427 n.9. “In raising new matters in a declaratory judgment proceeding under section 7476, the matters are to be based on information contained in the administrative record, not
sec. 1291 (1994). 3 Sec. 3103(b)(1) of the IRS Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 685, 731, amended sec. 7436(c)(1) to increase the limit from $10,000 to $50,000 per quarter, effective for proceedings commenced after July 22, 1998. - 6 - Next, we consider whether our interpretation of section 7436
7422; 28 U.S.C. sec. 1291 (1994). Sec. 3103(b)(1) of the IRS Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 685, 731, amended sec. 7436(c)(1) to increase the limit from $10,000 to $50,000 per quarter, effective for proceedings commenced after July 22, 1998. Sec. 7436(a) provides: SEC. 7436. PROCEEDINGS FOR DETERMINATION OF EM
In the present case, respondent decided not to accept petitioner's amended returns for 1990 and 1991, which decision was made after the examination of those years and the issuance of a notice of deficiency for those years. Respondent's decision made it appropriate for petitioner to allege, as it did in its petition for 1990 and 1991, tha
In the present case, respondent decided not to accept petitioner's amended returns for 1990 and 1991, which decision was made after the examination of those years and the issuance of a notice of deficiency for those years. Respondent's decision made it appropriate for petitioner to allege, as it did in its petition for 1990 and 1991, tha
In the present case, respondent decided not to accept petitioner's amended returns for 1990 and 1991, which decision was made after the examination of those years and the issuance of a notice of deficiency for those years. Respondent's decision made it appropriate for petitioner to allege, as it did in its petition for 1990 and 1991, tha
5 Rule 23(a)(1) provides that "The name of an estate or trust or other person for whom a fiduciary acts shall precede the fiduciary's name and title, as for example 'Estate of Mary Doe, (continued...) - 51 - Turner v.
However, if jurisdiction is lacking because of respondent's failure to issue valid notices of deficiency, we will dismiss the case on that ground, rather than for lack of a timely filed petition. Pietanza v. Commissioner, 92 T.C. 729, 735-736 (1989), affd. without published opinion 935 F.2d 1282 (3d Cir. 1991); Weinroth v. Commissioner,
1) the amounts received from his civil rights lawsuit (hereafter civil action) are excludable from income, (2) he did not receive any income in tax year 1991, (3) the Tax Court is without jurisdiction because of respondent's failure to comply with section 7422, (4) respondent's determination is barred by the 2-year statute of limitations provided in section 6532(b), and (5) respondent is estopped from determining the instant deficiencies.
e taxpayer” whether in the context of deficiency cases in the Tax Court (sec. 6212 — notice of deficiency; sec. 6213 — restrictions applicable to deficiencies; petition to Tax Court) or in the context of tax refund cases in the U.S. District Courts (sec. 7422 — civil actions for refund). However, when it comes to venue provisions, sec. 7482(b)(1)(A) uses the term “petitioner” for the party filing a deficiency case in the Tax Court, and 28 U.S.C. sec. 1402(a)(1) (1994) uses the term “plaintiff” f