Form 8 Due Date With Extension Form 8 Due Date With Extension Is So Famous, But Why?

Tax professionals accept frequently cited the statute of limitations on claims for acquittance to be the afterwards of two years from the date of acquittal or three years from the date of filing based on the credible accent of IRC area 6511. The columnist offers insights into the coaction of subsections (a) and (b) of area 6511, which causes a abstruse book that has puzzled the courts for decades. Afterwards the IRS’s accident in Weisbart v. U.S., recently revised Treasury Regulations announce the IRS will alter all claims for acquittance advanced disallowed on area agnate to those in Weisbart, no bulk how old.



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The IRS issued 120 actor alone assets tax refunds in budgetary year 2017. Alone assets tax refunds fabricated up added than 98% of all refunds issued and about 88% of all tax dollars refunded. That aforementioned year, about 21% of all alone assets tax calm was eventually refunded (IRS Abstracts Book). A analysis of the aftermost 10 years’ account of abstracts appear by the IRS indicates that these abstracts accept reamined constant. Each year, a abundant portion—more than 20%—of alone assets tax calm is refunded, and alone assets tax refunds accomplish up the all-inclusive majority of all refunds, both by calculation and dollars (Exhibits 1 and 2).

Refunded Allocation of Alone Assets Tax Collected



Individual Assets Tax Refunds, Percentage of Total



In accepted terms, claims for acquittance are premised on the three requirements set alternating in Internal Acquirement Code (IRC) area 6511:

With account to the aboriginal requirement, Congress did not ascertain “overpayment,” but bound itself to accouterment some examples. IRC area 6401 treats as overpayment any taxes calm afterwards the cessation of the statute of limitations, refundable tax credits in balance of the tax liability, and any bulk calm in cases area the aborigine does not accept a tax liability. The aboriginal attack to ascertain the appellation “overpayment” comes from Jones v. Liberty Glass Co. [332 U.S. 524, 68 S.Ct. 229, 92 L.Ed. 142 (1947)], area the Supreme Cloister “read the chat ‘overpayment’ in its accepted sense, as acceptation any acquittal in balance of that which is appropriately due.” This alive analogue was reaffirmed by the Supreme Cloister in 1990 aback it declared that “the commonsense estimation is that a tax is overpaid aback a aborigine pays added than is owed, for whatever acumen or no acumen at all” [U.S. v. Dalm, 494 U.S. 596, 609, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990)].

The additional requirement, that the affirmation be appropriate filed, is imposed by IRC area 6511(a), which provides that a affirmation for acquittance of an overpayment of any tax charge be filed “within three years from the time the acknowledgment was filed or two years from the time the tax was paid, whichever of such periods expires the later.”

The third requirement, the lookback period, is bent with advertence to IRC area 6511(b), which sets two altered lookback periods:

The additional and third requirements are at the affection of this article, as the circle of subsections (a) and (b) can present a abstruse scenario. The absurdity stems from the credible accent of area 6511, which determines the time-liness of a affirmation for acquittance with advertence to an beforehand acquittal or an beforehand return; the Treasury Regulations, however, accommodate that an aboriginal acknowledgment is itself a affirmation area it shows an overpayment [section 301.6402-3(a)(5)]. Therefore, a 18-carat affair of accommodation arises aback a affirmation for acquittance is anchored in an aboriginal behind acknowledgment (i.e., any aboriginal acknowledgment filed afterwards the date assigned by IRC area 6072). In these cases, is the affirmation appropriate on its face because the acknowledgment and the affirmation are filed at the aforementioned time, or is the accommodation of the affirmation bent alone by advertence to the date that avalanche two years afterwards the best contempo payment, aback no beforehand acknowledgment was filed? Or could there be a absurdity whereby the claim, benefitting from the mailbox aphorism (discussed below), is accounted filed afore the behind return, not itself acceptable for the mailbox rule? Aback 1976, the IRS and the courts accept afflicted their angle on these questions assorted times.

In 1976, the IRS issued Acquirement Cardinal 76-511, authoritative it the aboriginal allotment of authoritative advice on this point. The academic timeline in this acquirement cardinal (Exhibit 3) provided that a aborigine did not book a appropriate 1972 assets tax return, but instead filed an aboriginal acknowledgment that anchored a affirmation three years and 15 canicule afterwards the aboriginal due date of the return. The affirmation stemmed from assets tax withholdings during 1972, which were accounted paid on April 15 of the afterward year beneath IRC area 6513(b)(1).

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Hypothetical Timeline, Acquirement Cardinal 76-511

The acquirement cardinal assured that the affirmation was appropriate filed aback the aboriginal acknowledgment and the affirmation were filed calm as the aforementioned document, and accordingly the three-year affirmation of area 6511(a) was met on its face. The lookback aeon beneath area 6511(b), however, continued alone three years from the date the affirmation was filed, and accordingly no allocation of the overpayment was refundable. In sum, while the affirmation was appropriate filed, the refundable bulk was nil.

Revenue Cardinal 76-511 was a simplistic attack at advice that larboard added questions changing than answered. It did not address, for example, the furnishings of an addendum of time to book (per IRC area 6081) to the lookback period, nor the account of the mailbox rule. In fact, the acquirement cardinal postulated, somewhat naively, that the aboriginal acknowledgment embedding the affirmation was filed on April 30, 1976, afterwards acknowledgment or absorption to the date of commitment and the date of receipt.

The questions changing by the 1976 acquirement cardinal alike anon thereafter in King v. U.S. [495 F.Supp. 334 (D. Neb. 1980)]. In King, the aborigine claimed a acquittance of overpaid 1973 taxes. The affirmation was fabricated on a behind aboriginal acknowledgment mailed on April 15, 1977, and accustomed by the IRS on April 20, 1977. With account to the accommodation of the claim, the King court begin that the affirmation was filed on time aback it was filed forth with the aboriginal acknowledgment and accordingly met the three-year aphorism on its face. The added difficult catechism in King was the appliance of the lookback aeon and whether it would alpha on the date of commitment or the date of receipt. The cardinal issue, therefore, was the account of the mailbox aphorism to claims for acquittance anchored in aboriginal behind returns.

In accordant part, IRC area 7502(a), frequently referred to as the “mailbox rule,” provides that “if any return, claim, account or added certificate appropriate to be filed … aural a assigned period” is mailed on or afore the corresponding due date, “the date of the United States postmark formed on the awning … shall be accounted to be the date of delivery.” The appliance of the mailbox aphorism rests on the due date of the certificate actuality filed [Treasury Regulations area 301.7502-1(a)]. In added words, if a tax acknowledgment is deposited in the U.S. mail, the due date of that acknowledgment will ascendancy whether the mailbox aphorism can be invoked because the postmark date charge abatement on or afore that return’s due date.

The appropriate affair in King was the actuality of a bivalent filing: a distinct certificate confined both as aboriginal acknowledgment and affirmation for refund. To the admeasurement the cloister would accede the certificate an aboriginal return, the mailbox aphorism would not apply, as the postmark date fell continued afterwards the return’s aboriginal due date; however, to the admeasurement the cloister would accede the certificate a affirmation for refund, the mailbox aphorism would apply. The King court bound this affair by alleviative the certificate primarily as an aboriginal acknowledgment not acceptable to affirmation the allowances of the mailbox aphorism and accordingly filed on April 20, 1977, the date of receipt. The claim, filed forth with the acknowledgment as one document, was additionally advised filed on the date of receipt. Beneath these circumstances, the lookback aeon did not extend abundantly astern to accede any allocation of the overpayment to be refundable, as credible in Exhibit 4.

Timeline, King v. U.S.

Both King and Acquirement Cardinal 76-511 assured that a affirmation for acquittance anchored in an aboriginal behind acknowledgment was appropriate filed on its face beneath the “one-document rule.” King, however, provided the aboriginal antecedent with account to the account of the mailbox rule, captivation that the certificate actuality filed was in assumption a behind return, admitting embedding a affirmation for refund, and accordingly not acceptable for the mailbox rule. Neither King nor Acquirement Cardinal 76-511, however, addressed the furnishings of an addendum of time to book to the lookback period.

Rather than following King, the IRS issued Accepted Counsel Memorandum (GCM) 38665, asserting that the cloister “misinterpreted the regulation’s bright meaning.” The IRS opined, “We do not accept that a affirmation for acquittance filing date is necessarily the aforementioned as the tax acknowledgment filing date, alike if both the affirmation and the acknowledgment are filed on a distinct Form 1040.” This position was based on the then-proposed changes to the area 7502 regulations, which accept aback been revised afresh and congenital in Treasury Regulations area 301.7502-1.

GCM 38665 was the aboriginal allotment of authoritative advice abandonment from the one-document rule, appropriately creating the fiction that a distinct filing could buck two filing dates: one as an aboriginal return, based on date of receipt, and the added as a affirmation for refund, based on the date of mailing. The filing date of the affirmation accordingly would announce that of the return. This larboard a new changing question: because the accommodation of a affirmation for acquittance beneath IRC area 6511(a) is absolute with account to either an beforehand acquittal or an beforehand return, and because no beforehand acknowledgment exists aback a affirmation is filed afore the return, is the accommodation again bent based alone on the date that avalanche two years afterwards the best contempo payment? If so, the actual aforementioned affirmation for acquittance disallowed in King would still be disallowed, although this time for appetite of appropriate filing and not because of the lookback period. This would become the IRS’s official position on this point for the abutting 19 years.

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Porter v. U.S. [919 F.Supp. 927 (E.D.Va. 1996)] added an important allotment to the puzzle: the furnishings of an addendum of time to book to the lookback period. While the credible accent of area 6511(b)(2) stretches the lookback aeon by any addendum of time to book granted, it is bashful as to whether the continued lookback aeon applies alike aback the acknowledgment was filed afterwards the continued due date. In added words, could a aborigine account from the continued lookback aeon alike aback the aborigine did not accomplish use of the filing extension?

In Porter, the aborigine anchored a six-month addendum of time to book his 1987 assets tax return. The aborigine did not accomplish use of this extension, but instead filed his tax acknowledgment on March 1, 1993, about 4½ years afterwards the continued due date. The backward acknowledgment anchored a affirmation for acquittance of $12,767. As the cloister stated:

Complications arise, however, aback extensions are accepted or allotment are filed late. … A actual backward acknowledgment may accord acceleration to a appropriate affirmation abounding years afterwards the tax year in question, but that affirmation will be acutely bound by the affirmation that the bulk of the affirmation may alone accommodate the “portion of” taxes absolutely paid aural the three years above-mentioned the presentation of the claim. Additionally, if an addendum has been accepted for the filing of a return, the bulk of that addendum will be added to the lookback period.

Based on the credible accent of the statute and an beforehand 1985 accommodation by the 10th Circuit Cloister of Appeals [Weigand v. U.S., 760 F.2d 1072 (10th Cir., 1985)], the Porter court activated a 3½-year lookback period. Effectively, the cloister apprehend the statute based on its credible meaning: that the lookback aeon would be diffuse by any addendum of time to file, behindhand of whether the acknowledgment was filed by the continued due date.

At the end of a active year in 2000, the IRS conceded defeat on this affair already and for all. In May, the IRS issued Field Account Advisory (FSA) 200021010, in which it reasserted its position that the mailbox aphorism does not administer to behind allotment embedding a affirmation for refund. The apriorism of FSA 200021010 was that beneath IRC area 6511(a), claims for acquittance had to be filed with advertence to an beforehand acquittal or an beforehand return. In the absence of a return, the aborigine could either book a affirmation aural two years of the beforehand acquittal or aboriginal book a acknowledgment and again booty advantage of the three-year aeon to book a claim. Therefore, area a affirmation and a behind acknowledgment were filed in the aforementioned document, the certificate would be advised primarily as a behind acknowledgment not acceptable for the mailbox rule. In all such cases, the IRS opined, the filing date for both the acknowledgment and the affirmation would accordingly be the date of receipt, not the date of mailing.

The IRS dedicated its position on this affair on two fronts aural weeks from one another. Although the aboriginal of the two cases to be argued was Anastasoff v. U.S. [223 F.3d 898 (8th Cir. 2000)], the aboriginal of the two opinions to be appear was Weisbart v. U.S. [222 F.3rd 93 (2nd Cir. 2000)]. Both cases revolved about the appliance of the mailbox aphorism to behind allotment embedding a affirmation for refund, and the two courts accomplished adverse conclusions.

The IRS’s arguments abiding the Anastasoff court, which appear its assessment in August 2000. The cloister agreed that:

Even if area 7502 could administer to a appropriate claim, it would not advice in this situation: If area 7502 were activated to the claim, it would be accounted accustomed afore the return. But area 6511(a) provides that a affirmation charge be submitted aural two years of over-payment if no acknowledgment has yet been filed—not three years. In added words, to save the affirmation beneath area 6511(b) alone makes it abortive beneath area 6511(a).

Therefore, the Anastasoff court did not administer the mailbox aphorism and about followed the IRS’s position that the filing date for both aspects of the certificate (i.e., affirmation and behind return) was the date of receipt.

While the Anastasoff court was advancing to broadcast its opinion, the Weisbart court heard and absitively a about agnate case, with a awfully altered outcome, publishing its assessment one ages advanced of Anastasoff. In Weisbart, the aborigine acquired a four-month addendum of time to book his 1991 tax return. The tax return, which anchored a claim, was eventually mailed on August 17, 1995, and accustomed by the IRS four canicule after. The Weisbart court authentic the aforementioned IRS position that abiding the Anastasoff court as “arabesque” and instead captivated that the collective certificate (return and claim) was primarily a affirmation acceptable for the mailbox aphorism and accordingly accounted filed on its postmark date. The timeline per this accommodation is credible in Exhibit 5.

Timeline, Weisbart v. U.S.

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Of accurate absorption is why the Weisbart court captivated that the collective certificate was primarily a affirmation acceptable for the mailbox rule. The cloister bent that the mailbox aphorism activated because the date of commitment was aural 3 years of the date of payment:

Even admitting Weisbart’s tax acknowledgment was abortive filed, his acquittance affirmation enjoys the account of the mailbox rule, and is accounted filed on August 17, 1995. Because that date is aural 3 years of the date aback Weisbart is accounted to accept paid his withheld application taxes, he may balance any overpayment included in those taxes beneath the lookback accoutrement of area 6511(b)(2)(A).

To butt the aberration of the Weisbart reasoning, it is advantageous to acknowledgment to the basics of IRC area 6511. Subparagraph (a) contains a accommodation affirmation that dictates whether a affirmation is appropriate filed. Subparagraph (b) contains a abstracted and distinct—but overlapping—quantitative limitation as to how abundant of the over-payment may be refundable. The Weisbart court was alleged to adjudge the accommodation affair stemming from subpara-graph (a), which finer adequate on the account of the mailbox rule. The cloister captivated that “because that date is aural three years of the date aback Weisbart is accounted to accept paid his withheld application taxes, he may balance any overpayment included in those taxes beneath the lookback accoutrement of area 6511(b)(2)(A).” In added words, the Weisbart court captivated that because the affirmation had met the requirements of sub-paragraph (b), it necessarily met the requirements of subparagraph (a).

This altercation is circular. The look-back aeon in Weisbart was abundantly continued alone because the cloister aboriginal affected that the mailbox aphorism would administer to actuate whether the affirmation was timely. In sum, the cloister alloyed the two requirements, bold that affair one satisfies the other; fabricated a cessation that the affirmation annoyed the lookback aeon by aboriginal bold that it had already able for the mailbox rule, which was the actual affair the cloister was alleged to decide; and ultimately captivated that the affirmation was appropriate filed because it met the lookback period.

In November 2000, the IRS issued an Action on Accommodation [AOD-CC-2000-09 (Nov. 13, 2000)] about accusatory the incorrect captivation of Weisbart but chief that it “will no best altercate that area 7502(a) does not administer beneath facts such as those in Weisbart. Accordingly, the account will administer … area 7502(a) in such cases and amusement claims for acquittance included on behind aboriginal allotment as filed on the date of mailing.”

The accident of the Weisbart case and the IRS’s accommodation to accede led to abrupt revisions of the area 7502 regulations. These revisions led, amid added things, to the accession of subparagraph (f) to Treasury Regulations area 301.75021. On its face, subparagraph (f) embodies the Weisbart rule by stipulating that aback a behind acknowledgment absolute a affirmation for acquittance is postmarked aural three years from the date of acquittal but accustomed added than three years from the date of payment, the mailbox aphorism applies to the collective certificate such that both affirmation and acknowledgment are accounted filed on the postmark date. The regulations action an archetype based on a academic aborigine commitment a 2001 tax return, absolute a affirmation for refund, on April 15, 2005; the acknowledgment is accustomed on April 18, 2005 (Exhibit 6). Aback the acknowledgment and affirmation were postmarked aural three years from the date of payment, the mailbox aphorism would administer so that the affirmation is accounted timely.

Hypothetical Timeline, Treasury Regulations Area 301.7502-1(f)(3)

The Weisbart opinion and the IRS’s accommodation to accede and alter the area 7502 regulations in aftereffect aggrandize subparagraph (a) of area 6511 to say article it does not say. IRC area 6511(a) provides that a affirmation is appropriate if it is filed aural three years of a acknowledgment or two years from a payment—it does not say annihilation about any affirmation actuality appropriate if filed aural three years from a payment. Nevertheless, this is the assured association of the Weisbart opinion, at atomic in the case of behind allotment embedding a affirmation for refund.

The IRS’s annotation to the revisions fabricated to the area 7502 regulations deserves absorption (66 FR 2257-01). The annotation declared that the changes fabricated to the mailbox regulations would “be activated retroactively to assertive advanced disallowed claims for acclaim or refund,” and that the IRS would “attempt to analyze as abounding claims as accessible that were filed on abortive aboriginal alone assets tax allotment and that were advanced disallowed based on the government’s position in Weisbart” and “issue a refund, or acclaim the overpayment adjoin a accountability … afterwards the charge for the aborigine to acquaintance the IRS.” The annotation additionally states, however, that “such automated reconsideration of the affirmation will about action if the affirmation was filed on an alone assets tax acknowledgment for 1995 or a consecutive agenda year.”

There are no credible limitations as to how far aback the revised area 7502 regulations are valid. For this reason, it may be astute for tax professionals to ask audience whether they anytime had a affirmation disallowed by the IRS and, to the admeasurement the acknowledgment is yes, to investigate why. The credible accent of the IRS’s annotation indicates that the IRS will alter all claims for acquittance advanced disallowed on area agnate to those in Weisbart—no bulk how old they ability be.

Preparers should additionally accede this important lesson: the lookback aeon beneath IRC area 6511(b) is consistently diffuse by an addendum of time to file. Therefore, it is appropriate to consistently appeal an extension, afterwards exception, alike aback the aborigine files by the aboriginal due date or does not book at all. The continued lookback aeon can still be advantageous if and aback a affirmation for acquittance is eventually filed.

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