Last day for 2004 return

[Bill Tubbs]

I was putting some rough numbers together for a client who had not filed a 2004 return yet. He's due a refund somewhere between 2000 and 4000, depending on how much more digging he does to fine tune the number. With tomorrow being the deadline, do I file a regular return with getting a refund of about $4000, then when (yeh, right!) he gets better numbers amend the 2004 return to pay the difference? (If I prepared a return getting a $2000 refund, and then after a bit more digging the refund would turn out to be $4000, we wouldn't be able to get the add'l because of the SOL.) Or is there something else that could be filed to suspend/extend the SOL another month?

Thanks,
Bill

[myerstaxes]

The Statute on a filed returns starts

with the date received or postmarked...So the Statute on the 2004 return if you file it by tomorrow to save the refund, will be 4/15/2011...I have one as well, it will be postmarked tomorrow too...Go ahead and file with the best information you have, then file a 1040X to get the rest of the refund...

here is the code section...
(a) Period of limitation on filing claim
Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.
(b) Limitation on allowance of credits and refunds
(1) Filing of claim within prescribed period
No credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) for the filing of a claim for credit or refund, unless a claim for credit or refund is filed by the taxpayer within such period.
(2) Limit on amount of credit or refund
(A) Limit where claim filed within 3-year period
If the claim was filed by the taxpayer during the 3-year period prescribed in subsection (a), the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return. If the tax was required to be paid by means of a stamp, the amount of the credit or refund shall not exceed the portion of the tax paid within the 3 years immediately preceding the filing of the claim.

[clr]

Certified Mail

Your client had better send it certified mail. I had a client send in year 2003 last year regular mail and he is still trying to get the refund, IRS has told him the return was filed to late.

[New York Enrolled Agent]

with the date received or postmarked...So the Statute on the 2004 return if you file it by tomorrow to save the refund, will be 4/15/2011...I have one as well, it will be postmarked tomorrow too...Go ahead and file with the best information you have, then file a 1040X to get the rest of the refund...

here is the code section...
(a) Period of limitation on filing claim
Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.
(b) Limitation on allowance of credits and refunds
(1) Filing of claim within prescribed period
No credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) for the filing of a claim for credit or refund, unless a claim for credit or refund is filed by the taxpayer within such period.
(2) Limit on amount of credit or refund
(A) Limit where claim filed within 3-year period
If the claim was filed by the taxpayer during the 3-year period prescribed in subsection (a), the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return. If the tax was required to be paid by means of a stamp, the amount of the credit or refund shall not exceed the portion of the tax paid within the 3 years immediately preceding the filing of the claim.

If I understand your post correctly, then I believe you are mis-intepreting §6511. As you pasted, there are two parts to §6511 (in essence, there are TWO look-backs in that section). Part a) describes the limitation on filing a claim for refund. Part b) gives the limitation on the refund that can be recovered.

There ia an excellent discussion on this by Judge McLaughlin who wrote the opinion in Weisbart 86 AFTR 2d 2000-5524 in a CA2 decision. As the judge notes, "the tax code was not set up to indulge the dilatory".

§6511(b) proscribes (as relevant here) that taxes must have been paid within the 3 year period prior to the filing of a refund claim in part a). The original post indicates nothing more than a "plain vanilla" type of return. I assume the only taxes subject to refund were withholding taxes and no extension was filed. If that is correct, the taxes are deemed to have been paid on April 15, 2005 (§6513(b)(1)). Thus any refund must be done within the 3 year period from that date. IMO, April 15, 2008 is your deadline to actually ask for AND receive a refund on those 2004 taxes.