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Understanding the IRC’s Excessive Refund Claim Penalty

Recently, the Internal Revenue Service (IRS) has been asserting the Internal Revenue Code Section 6676 penalty much more frequently in examinations and in court. For example, in 2023, a government counterclaim in the US District Court for the Middle District of Georgia sought to recover Section 6676 penalties in Townley v. United States. And, internal IRS guidance requires examiners to consider whether to assert the penalty in every case in which a refund is disallowed.

In light of these factors, and major questions being raised in high-profile tax cases like Moore v. United States, which is currently pending before the Supreme Court of the United States, taxpayers are wondering whether the penalty can be asserted as a protective refund claim.

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Weekly IRS Roundup April 22 – April 26, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 22, 2024 – April 26, 2024.

April 22, 2024: The IRS released Internal Revenue Bulletin 2024-17, which includes the following:

  • Proposed regulations, which would facilitate the transfer of tax return information to the US Census Bureau and permit the disclosure of additional tax return information to the US Secretary of Commerce.
  • Announcement 2024-19, which provides guidance on the federal income tax treatment for amounts paid toward the purchase of energy efficient property and improvements under the US Department of Energy’s Home Energy Rebates program pursuant to the Inflation Reduction Act of 2022.

April 22, 2024: The IRS encouraged tax professionals to register for the 2024 IRS Nationwide Tax Forum, which is coming to Chicago, Orlando, Baltimore, Dallas and San Diego this summer.

April 23, 2024: The IRS announced that it will accept applications for Low Income Taxpayer Clinic matching grants until June 12, 2024. Funding and performance of these grants will occur from January 1, 2025, to December 31, 2025.

April 23, 2024: The IRS reminded taxpayers that it offers resources to help those who may be unable to pay their tax bill in total and that payments are still due by the April 15 deadline, even if a taxpayer requested an extension to file a tax return.

April 24, 2024: The IRS announced the formation of a new Alternative Dispute Resolution Program Management Office, which will collaborate with the IRS Business Operating Divisions to help taxpayers resolve tax disputes earlier and more efficiently.

April 24, 2024: The IRS reminded taxpayers to consider applying for an offer in compromise, which settles a tax debt for less than the full amount owed, if they cannot pay their full tax debt or if paying would cause financial hardship.

April 25, 2024: The IRS issued final regulations on the transfer of the eligible manufacturing investment, clean energy investment and production tax credits, including specific rules for partnerships and S corporations.

April 25, 2024: The IRS advised taxpayers that they can file an amended federal tax return if they discover a math error, missing income or another mistake.

April 25, 2024: The IRS announced that it will create new, fully electronic processes and systems, update legacy systems, and improve compliance and fraud mitigation.

April 26, 2024: The IRS announced the closure of the Direct File pilot, with several hundred thousand taxpayers across 12 states signing up for Direct File accounts and more than 140,000 taxpayers filing their federal tax returns using the new service.

April 26, 2024: The IRS reminded taxpayers that they have the right to a fair and just tax system under the
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Weekly IRS Roundup April 15 – April 19, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 15, 2024 – April 19, 2024.

April 15, 2024: The IRS released Internal Revenue Bulletin 2024-16, which includes the following:

  • Announcement 2024-16, which describes the experience, structure and activities of the Advance Pricing and Mutual Agreement Program during calendar year 2023.
  • Proposed regulations, which would revise regulations pertaining to the advance notice provided to taxpayers before the IRS contacts third parties. These proposed regulations are intended to conform to the new statutory language of Section 7602(c) of the Internal Revenue Code (Code), enacted as part of the Taxpayer First Act of 2019, and provide exceptions to the 45-day advance notice requirement where delaying contact with third parties for 45 days after providing notice to the taxpayer would impair tax administration.
  • Announcement 2024-17, which contains corrections to proposed regulations under Code Sections 761 and 6417 that address certain electricity production credits.
  • Notice 2024-30, which expands the Nameplate Capacity Attribution Rule under Section 4.02(1)(b) of Notice 2023-29 to include additional attribution property. The notice also adds two 2017 North American Industry Classification System industry codes to the table in Section 3.03(2) of Notice 2023-29, which are relevant for purposes of determining the Fossil Fuel Employment rate (as defined in Section 3.03(2) of Notice 2023-29).
  • Notice 2024-32, which addresses the eligibility of loan borrowers through State Supplemental Loan programs and the loan size limitation for State Supplemental Loans. The notice also provides guidance on whether an issue of state or local bonds, the proceeds of which are used to finance or refinance qualified student loans or to finance qualified mortgage loans, is a refunding issue.
  • Proposed regulations, which would identify certain charitable remainder annuity trust transactions and substantially similar transactions as listed transactions. Material advisors and certain participants in these listed transactions would be required to file disclosures with the IRS and would be subject to penalties for failure to disclose.
  • Revenue Procedure 2024-19, which provides the process under Code Section 48(e) to apply for an allocation of environmental justice solar and wind capacity limitation as part of the low-income communities bonus credit program for 2024. The revenue procedure also describes how the capacity limitation for the 2024 program year will be divided across the facility categories described in Sections 48(e)(2)(A)(iii) and 1.48(e)-1(b)(2), the Category 1 sub-reservation described in Section 1.48(e)-1(i)(1) and the additional selection criteria application options described in Section 1.48(e)-1(h).
  • Revenue Ruling 2024-8, which provides the terminal charge and Standard Industry Faire Level mileage rates used for valuing noncommercial flights on employer-provided aircraft.

April 15, 2024: The IRS announced it has answered over one million more taxpayer phone calls this tax season, helped over 170,000 more people in person and saw 75 million more IRS.gov visits [...]

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Weekly IRS Roundup April 8 – April 12, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 8, 2024 – April 12, 2024.

April 8, 2024: The IRS released Internal Revenue Bulletin 2024-15, which includes the following:

  • Announcement 2024-15, which revokes the § 501(c)(3) determination for specified organizations and stipulates that contributions made to said organizations by individual donors are no longer deductible under § 170(b)(1)(A) of the Internal Revenue Code (Code).
  • Notice 2024-31, which provides adjustments to the limitation on housing expenses for purposes of Code Section 911 for specific locations for 2024.
  • Revenue Procedure 2024-17, which provides a waiver under Code Section 911(d)(4) concerning time requirements for individuals who must leave a foreign country because of war, civil unrest or similar adverse conditions and are electing to exclude their foreign earned income. The revenue procedure also adds Ukraine, Belarus, Sudan, Haiti, Niger and Iraq to the list of waiver countries for tax year 2023 for which the minimum time requirements are waived.
  • Revenue Procedure 2024-18, which supplements Revenue Procedure 2023-32 by publishing amounts of unused housing credit carryovers allocated to qualified states under Code Section 42(h)(3)(D) for calendar year 2023 (in addition to those amounts published in Revenue Procedure 2023-32).
  • Final regulations, which describe rules for the elective payment of Inflation Reduction Act of 2022 tax credit amounts in a taxable year, including definitions and special rules applicable to partnerships and S corporations and regarding repayment of excessive payments. The regulations also describe rules related to a required IRS pre-filing registration process.
  • Final regulations, which describe rules for the elective payment of the advanced manufacturing investment credit under the Creating Helpful Incentives to Produce Semiconductors Act of 2022, including special rules applicable to partnerships and S corporations, repayment of excessive payments, and basis reduction and recapture. The regulations also describe rules related to a required IRS pre-filing registration process.

April 8, 2024: The IRS warned taxpayers about bad tax information on social media that can potentially lead to identity theft and tax problems.

April 9, 2024: The IRS warned tax professionals and businesses to remain vigilant and protect themselves against a continuing barrage of email spearfishing attempts, especially one particular type known as “new client” scams where identity thieves pose as potential clients using fake emails in hopes of stealing valuable information.

April 9, 2024: The IRS reminded taxpayers that its Direct File pilot is open to eligible taxpayers in 12 pilot states and allows the filing of 2023 federal tax returns online for free and directly with the IRS.

April 9, 2024: The IRS released proposed regulations that would implement the statutory netting rule, which reduces the aggregate fair market value of stock repurchased by a taxpayer during a certain taxable year. Additionally, [...]

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Weekly IRS Roundup April 1 – April 5, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 1, 2024 – April 5, 2024.

April 1, 2024: The IRS released Internal Revenue Bulletin 2024-14, which includes the following:

  • Notice 2024-29, which provides updates on the corporate bond monthly yield curve, the corresponding spot segment rates for February 2024 used under § 417(e)(3)(D) of the Internal Revenue Code (Code), the 24-month average segment rates applicable for March 2024, and the 30-year Treasury rates as reflected by the application of § 430(h)(2)(C)(iv).
  • Revenue Ruling 2024-7, which provides the April 2024 applicable federal rates.
  • Proposed regulations, which provide guidance on the Section 45V production tax credit added by the Inflation Reduction Act of 2022 (IRA) and on the election to treat qualified property that is part of a specified clean hydrogen production facility as energy property under Section 48.

April 1, 2024: The IRS warned taxpayers to beware of scammers attempting to sell or offer help setting up an online account on IRS.gov. Their goal is to get personal tax and financial information that can be used to commit identity theft.

April 2, 2024: The IRS reminded taxpayers there is still time to file federal income tax returns electronically and request direct deposit before the April 15 deadline.

April 2, 2024: The IRS warned taxpayers to beware of promotors who push improper Fuel Tax Credit claims by misleading taxpayers as it relates to fuel use and creating fictitious documents or receipts for fuel.

April 2, 2024: The IRS reminded taxpayers that the credit for other dependents is a $500 nonrefundable credit available to those with dependents who are not eligible for the Child Tax Credit. Taxpayers can claim this credit in addition to the child and dependent care credit and the Earned Income Credit.

April 3, 2024: The IRS reminded taxpayers affected by the terrorist attacks in Israel that they have until October 7, 2024, to file various federal individual and business tax returns that were originally due March 15 or April 15, make tax payments and perform other time-sensitive tax-related actions.

April 3, 2024: The IRS warned taxpayers to avoid offer in compromise (OIC) “mills” that aggressively mislead by raising false expectations and exploiting vulnerable individuals with promises that tax debt can magically disappear. OIC mills are on the IRS’s “Dirty Dozen” list.

April 3, 2024: The IRS reminded taxpayers who adopted or started the adoption process in 2023 that they may qualify for the adoption credit.

April 4, 2024: The IRS warned taxpayers about groups masquerading as charitable organizations to attract donations from unsuspecting contributors and gather sensitive personal and financial information that can be exploited for tax-related identity fraud.

April 4, 2024: The IRS
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Weekly IRS Roundup March 25 – March 29, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 25, 2024 – March 29, 2024.

March 25, 2024: The IRS released Internal Revenue Bulletin 2024-13, which includes the following:

  • Notice 2024-28, which invites the public to submit items they want included in the 2024-2025 Priority Guidance Plan. The Priority Guidance Plan identifies and prioritizes the tax issues that should be addressed through regulations, revenue rulings, revenue procedures, notices and other published administrative guidance.
  • Revenue Procedure 2024-11, which provides general rules and specifications from the IRS for paper and computer-generated substitutes for Form 941, Schedule B (Form 941), Schedule D (Form 941), Schedule R (Form 941) and Form 8974.
  • Proposed regulations, which would modify existing regulations to allow certain unincorporated organizations that are organized exclusively to produce electricity from certain property to be excluded from the application of partnership tax rules.

March 25, 2024: The IRS announced that almost 940,000 people across the nation have unclaimed refunds for tax year 2020 and face a May 17 deadline to submit their tax returns.

March 25, 2024: The IRS released the transcript of Commissioner Danny Wefel’s one-year anniversary speech.

March 25, 2024: The IRS reminded taxpayers they can access a free recording of the 2023 Form 1099-K webinar, which provides important info for tax professionals and anyone who receives a Form 1099-K, including people who use popular payment apps and online marketplaces.

March 25, 2024: The IRS announced that individuals and businesses in the Wrangell Cooperative Association of Alaska Tribal Nation that were affected by severe storms, landslides and mudslides that began on November 20, 2023, now have until July 15, 2024, to file various federal individual and business tax returns and make tax payments.

March 25, 2024: The IRS released Notice 2024-32, which provides guidance on the eligibility of loan borrowers through State Supplemental Loan programs and the loan size limitation for State Supplemental Loans. The notice also provides guidance on whether an issue of state or local bonds, the proceeds of which are used to finance or refinance qualified student loans (as defined in § 1.150-1(b)) or to finance qualified mortgage loans (as defined in § 1.150-1(b)), is a refunding issue.

March 26, 2024: The IRS released Announcement 2024-16, which provides general information on advance pricing agreements and the Advance Pricing and Mutual Agreement Program.

March 26, 2024: The IRS reminded taxpayers filing 2023 tax returns that they must check a box indicating whether they received digital assets as a reward, award, or payment for property or services or disposed of any digital asset that was held as a capital asset through a sale, exchange or transfer.

March 27, 2024: The IRS announced that the previous February 15, 2024, [...]

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Weekly IRS Roundup March 18 – March 22, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 18, 2024 – March 22, 2024.

March 18, 2024: The IRS released Internal Revenue Bulletin 2024-12, which includes the following:

  • Notice 2024-26, which announces that withholding agents (both US and foreign persons) are administratively exempt from having to electronically file Forms 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, which are required to be filed in calendar year 2024. Withholding agents who are foreign persons are administratively exempt in calendar year 2025 as well.
  • Announcement 2024-14, which revokes the § 501(c)(3) determination for Uplifting Her Inc. and stipulates that contributions made to the organization by individual donors are no longer deductible under § 170(b)(1)(A) of the Internal Revenue Code (Code).
  • Notice 2024-25, which provides population figures to use in calculating the 2024 calendar year population-based component of the state housing credit ceiling under § 42(h)(3)(C)(ii), the 2024 calendar year volume cap under § 146, and the 2024 volume limit under § 142(k)(5) of the Code.
  • Notice 2024-27, which requests additional comments on any situation in which an election under § 6417(a) of the Code could be made for a credit that was purchased in a transfer for which an election under § 6418(a) is made.
  • Revenue Procedure 2024-15, which modifies Revenue Procedure 2005-62 by expanding the definition of “public utility” to include all public utilities, not just investor-owned utilities, and changes the definition of a “qualifying securitization” to allow payments to be provided at least annually. The revenue procedure also sets forth the manner in which a public utility may treat certain legislatively authorized securitization transactions involving the issuance of debt instruments by a qualifying state financing entity, which is entered into by the public utility to recover specified costs through a non-bypassable surcharge to customers within the utility’s historic service area.

March 18, 2024: The IRS reminded taxpayers of the various ways to prevent typical errors on their federal tax returns to help speed up potential refunds, including using electronic filing, keeping copies of tax returns and ensuring the filing status is correct.

March 19, 2024: The IRS released Revenue Procedure 2024-17, which provides that war, civil unrest or similar adverse conditions precluded the normal conduct of business in Ukraine, Belarus, Sudan, Haiti, Niger and Iraq on or after various 2023 dates and, therefore, individuals with established residency or physical presence on or before the relevant dates are eligible for income exclusion under § 911(d)(1) of the Code.

March 19, 2024: The IRS released Notice 2024-29, which provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under § 417(e)(3), the 24-month average segment rates used under § 430(h)(2), the interest rate on 30-year Treasury securities under § 417I(3)(A)(ii)(II) as in [...]

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Can the IRS Assert IRC Section 6676’s Erroneous Refund Penalty on Protective Refund Claims?

We once again want to bring to your attention the Internal Revenue Service’s (IRS) new favorite penalty provision: Internal Revenue Code (IRC) Section 6676. We have reported on this provision several times before (See here, here and here), but this time we’re analyzing it in the context of protective refund claims.

As background, IRC Section 6676 was enacted in 2007 in response to the high number of presumed meritless refund claims being filed at the time. It imposes a 20% penalty to the extent that a claim for refund or credit with respect to income tax is made for an “excessive amount.” An “excessive amount” is defined as the difference between the amount of the claim for credit or refund sought and the amount that is actually allowable. For example, if a taxpayer claims a $2 million refund and the IRS allows only $1 million, the taxpayer can still be penalized $200,000 (e.g., 20% of the amount of the refund that was disallowed). Significantly, IRC Section 6676 does not require the IRS to show any fault or culpability on the part of the taxpayer (e.g., negligence or a disregard of rules or regulations). Neither the IRC nor the regulations provide for any defense to the Section 6676 penalty other than “reasonable cause.” Moreover, the penalty is immediately assessable, and generally taxpayers cannot fight the IRS on the penalty in a prepayment forum like it can the US Tax Court. Instead, the taxpayer must first pay the penalty and seek redress in a refund forum in either the relevant US federal district court or the US Court of Federal Claims.

Now that the IRS is asserting the IRC Section 6676 penalty more frequently, taxpayers are asking whether the penalty can apply to a protective refund claim. A protective refund claim is a judicial creation under which a taxpayer files a “protective” refund claim that is expressly contingent on a specified future event, like a taxpayer-friendly holding in a relevant court case. The Supreme Court of the United States has endorsed protective refund claims to toll the statute of limitations on the refund claim and thereby protect the taxpayer’s right to claim the refund if the favorable event should occur. (See, e.g., United States v. Kales, 314 US. 186 (1941), and CCA 201136021 (describing protective claims in detail).)

So, does the IRC Section 6676 penalty apply to a protective refund claim? Based on IRS internal guidance from 2022, the IRS believes that the IRC Section 6676 penalty applies to any filing that constitutes a “claim for credit or refund” of income tax, including a protective refund claim. To apply the penalty, the IRS would have to process the protective refund claim, deny the claim and then assert the IRC Section 6676 penalty.

Processing and denying a protective refund claim go against most tax practitioners’ experience and understanding of how the IRS treats protective refund claims. Typically, the refund claim is [...]

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Weekly IRS Roundup March 11 – March 15, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 11, 2024 – March 15, 2024.

March 11, 2024: In Internal Revenue Bulletin 2024-11, the IRS released Announcement 2024-10, which provides that replacement of lead service lines by government entities does not result in income for taxpayers.

March 11, 2024: The IRS highlighted seven suspicious signs that an Employee Retention Credit (ERC) claim is incorrect and urged businesses to seek a trusted tax professional to resolve an incorrect claim while they still can without penalties or interest. Fraudulent ERC claims have been added to the IRS’s “Dirty Dozen” list.

March 12, 2024: The IRS announced the full-scale launch of the Direct File pilot and encouraged eligible taxpayers in  Florida, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Wyoming, Arizona, California, Massachusetts, New York and Washington to file their tax returns online for free directly with the IRS using the new service.

March 13, 2024: The IRS announced that, effective April 1, Guy Ficco will become the new IRS Criminal Investigation Chief.

March 13, 2024: The IRS announced that the Joint Board for the Enrollment of Actuaries is retroactively extending the temporary waiver of its physical presence requirement for continuing professional education programs and is proposing regulations to eliminate the in-person requirement altogether.

March 13, 2024: The IRS reminded auto dealers and sellers that to submit time-of-sale reports and receive advance payments of the clean vehicle tax credit they must register their business with IRS Energy Credits Online.

March 14, 2024: The IRS reminded taxpayers who struggle to gather the necessary documents they need to file or pay the taxes they owe to consider several options offered on IRS.gov to avoid late filing and interest penalties. These include, among other things, requesting an extension to file tax returns and requesting a payment plan online.

March 14, 2024: The IRS reminded businesses that file 10 or more information returns that they must e-file Form 8300, Report of Cash Payments Over $10,000, instead of filing a paper return.

March 15, 2024: The IRS reminded businesses to review the ERC guidelines and consider the ERC Voluntary Disclosure Program or the claim withdrawal process to avoid penalties and interest. The deadline to apply for the ERC Voluntary Disclosure Program is March 2022.

March 15, 2024: The IRS reminded individuals and businesses that it is increasing the amount of information available in multiple languages. Much of the information on the IRS website has now been translated into seven different languages other than English. The IRS website’s Languages page includes an overview of key topics related to information about federal taxes in 21 languages.

March 15, 2024: The IRS released
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Weekly IRS Roundup March 4 – March 8, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 4, 2024 – March 8, 2024.

March 4, 2024: The IRS released Internal Revenue Bulletin 2024-10, which includes the following:

  • Revenue Ruling 2024-6, which provides that the overpayment interest rate under § 6621 of the Internal Revenue Code (Code) for the calendar quarter beginning April 1, 2024, will be 8% (7% in the case of a corporation), the underpayment interest rate will be 8% and the interest rate for large corporate underpayments will be 10%. The rate of interest paid on the portion of a corporate overpayment exceeding $10,000 will be 5.5%.
  • Notice 2024-24, which provides updates on the corporate bond monthly yield curve and corresponding spot segment rates for January 2024 used under Code § 417(e)(3)(D), the 24-month average segment rates applicable for February 2024, and the 30-year Treasury rates, as reflected by the application of § 430(h)(2)(C)(iv).
  • Announcement 2024-13, which revokes § 501(c)(3) determinations for certain organization(s) and stipulates that contributions made to the organization(s) by individual donors are no longer deductible under § 170(b)(1)(A).
  • Revenue Ruling 2024-04, which provides the March 2024 applicable federal rates.

March 4, 2024: The IRS announced that registration for its 2024 Nationwide Tax Forum is now open, providing tax professionals the opportunity to attend special continuing education sessions in five cities across the nation.

March 4, 2024: The IRS reminded taxpayers that the legal deadline for claiming the Recovery Rebate Credit in 2020 is May 17, 2024. The deadline for claiming the Recovery Rebate Credit in 2021 will be April 15, 2025.

March 5, 2024: The IRS issued final regulations, providing that certain tax-exempt organizations and political entities that earn certain clean energy credits can choose to make an elective payment election. Such an election results in the credits being treated as payments against the electing entity’s federal income tax liabilities with the IRS refunding any excess value. Notice 2024-27, in turn, requests additional comments on situations in which an elective payment election should be permitted with respect to credits purchased in a transfer for which an election under § 6418(a) is made.

March 6, 2024: The IRS reminded taxpayers that they are generally required to report all earned income on their tax returns, including income earned from digital asset transactions, the gig economy and the service industry as well as income from foreign sources.

March 6, 2024: The IRS released a statement acknowledging concerns related to a proposed policy change from January 2 that would limit access to tax return information from the IRS to protect taxpayer confidentiality. In response to comments, the IRS has suspended any changes under the proposed policy.

March 6, 2024: The IRS announced that Margie Rollinson took the oath [...]

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