Guides

Raising the Statute of Limitations in Tax Court: The IRC 6501 Guide

Your notice of deficiency came over three years after you filed. How to raise the IRC 6501 defense in Tax Court, who proves what, and the IRS's exceptions.

Liam Williams

Liam Williams

— 49 min read
Share

You put two dates side by side: the date on your notice of deficiency, and the date you filed the return for that year. More than three years separate them.

If the gap is real, the IRS may have run out of time to assess the tax, and the Tax Court can say so. An assessment is the IRS's formal recording of a tax as owed on its books, the step that turns a proposed deficiency into a debt it can collect. IRC Section 6501 gives the IRS 3 years from the filing of a return to assess, and a decision that the period ran is, by statute, a decision that there is no deficiency.

But the defense is not automatic. It turns on when the return was really filed, when the notice was really mailed, whether the clock was stopped, whether you signed something that extended it, and whether an exception (no return, a 25% omission of income, fraud) applies. And you must raise it yourself, in a petition filed within 90 days of the notice date (150 days if it was addressed to you outside the United States).

Where To Start, Depending on Where You Are

What a Limitations Win Actually Is

Start with what the defense is not. It is not a reason the Tax Court lacks jurisdiction, and it does not come up on its own. In Evert v. Commissioner, T.C. Memo. 2022-48, the court repeated a line it has used since 1963: "'[T]he statute of limitations is a defense in bar and not a plea to the jurisdiction of this Court.'"

Two consequences. The petition deadline still applies: 90 days from the date of the notice (150 days if it was addressed to you outside the United States), and a late petition forfeits the chance to raise the bar in a deficiency case, except in rare cases in the states covered by four federal appeals courts. Writing to the IRS that the statute has expired does not stop that deadline; once a notice of deficiency is out, only a timely petition keeps the defense in Tax Court. (If the deadline has already passed, see "If You Missed the Petition Deadline" below.) And the defense has to be pleaded; raised for the first time at trial or in a brief, it is not considered (Step 4).

Now what a win produces. IRC Section 7459(e): "If the assessment or collection of any tax is barred by any statute of limitations, the decision of the Tax Court to that effect shall be considered as its decision that there is no deficiency in respect of such tax." The court does not dismiss the case. It enters a decision of no deficiency, with the same finality as any other decision.

The penalties and interest in the notice fall with the tax. Under IRC Section 6665(a)(2), "any reference in this title to 'tax' imposed by this title shall be deemed also to refer to the additions to the tax, additional amounts, and penalties provided by this chapter," so the three-year rule covers the accuracy-related penalty and the late-filing and late-payment additions (How To Fight the IRS Accuracy-Related Penalty in Tax Court). Interest under IRC Section 6601(g) "may be assessed and collected at any time during the period within which the tax to which such interest relates may be collected," and no longer. Hoffman v. Commissioner, 119 T.C. 140 (2002): "Petitioners have no liability for interest or a penalty relating to a tax liability that was eliminated by the expiration of the period of limitations."

The flip side if the defense fails: interest on a deficiency runs from the return's original due date, not the notice date. § 6601(a) charges it "from such last date to the date paid," § 6601(b)(1) fixes that date "without regard to any extension of time for payment," and IRC Section 6151(a) puts it at the filing deadline "(determined without regard to any extension of time for filing the return)." A deposit under IRC Section 6603 stops interest on the deposited amount while you litigate (How Interest Works on Your IRS Tax Debt), and § 6404(g) can suspend part of it if the IRS was slow to tell you what you owed (the § 6404 abatement guide).

Now the money already paid. Anything the IRS assessed or collected after the period ran, whether you paid it, it was levied, or a refund was offset against it, is an overpayment by definition. IRC Section 6401(a): "The term 'overpayment' includes that part of the amount of the payment of any internal revenue tax which is assessed or collected after the expiration of the period of limitation properly applicable thereto." Hoffman: "Any amounts assessed, paid, or collected after the expiration of the period of limitations are overpayments." The limit is timing: a payment you made before the period ran out is not an overpayment on this theory.

A limitations win does not send the money back by itself. The Tax Court can determine the overpayment under IRC Section 6512(b)(1), but § 6512(b)(3) limits it to amounts paid after the notice was mailed, or within the § 6511 refund-claim periods (3 years from filing, 2 years from payment) counted as if a claim had been filed on the notice date, or under a timely refund claim filed before the notice. So ask for it expressly: in the request for relief that Rule 34(b)(1)(J) requires, or on Form 2 with the "no deficiency" request at the end of item 5 (Step 4).

For income tax there is no taxpayer abatement claim: IRC Section 6404(b) bars one, and the Form 843 instructions say not to use that form for income tax. The IRS abates a barred unpaid assessment on its own authority (§ 6404(a) reaches any tax "assessed after the expiration of the period of limitation properly applicable thereto"); income tax already collected comes back only through a refund claim on Form 1040-X within the § 6511 periods or through the Tax Court's decision (penalties and interest paid on a barred assessment go on Form 843, as its instructions direct).

A pro se collection case shows the win in full. In Dingman v. Commissioner, T.C. Memo. 2011-116, the IRS assessed fraudulent-failure-to-file additions under § 6651(f) in February 2006 for 1996 through 2000, three years after the petitioner's lawyer had delivered his returns to IRS Criminal Investigation special agents. The court held those agents were, on the facts, authorized to receive the returns: "Because respondent did not timely assess the section 6651(f) additions to tax for 1996-2000, respondent is barred from collecting the underlying tax liabilities at issue here." Decision was entered for the petitioner. (The IRC 6651 Guide covers that addition.)

One warning to carry through the rest of this guide. In Badaracco v. Commissioner, 464 U.S. 386 (1984), the Supreme Court said: "Statutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government." Genuine ambiguity gets resolved against you. The defense wins on clean dates, not on fairness.

Step 1: Fix the Date Your Return Was Filed

Everything starts from the filing date, and the filing date is not always the date on your copy.

The Three-Year Rule and When It Starts

Section 6501(a) provides: "Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) ... and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period." Evert states the everyday version: "This three-year period begins on the due date of the return if it is timely filed or on the actual filing date if the return is filed late."

There are three cases, and the middle one is where people get it wrong.

Filed early. Under § 6501(b)(1), a return "filed before the last day prescribed by law or by regulations promulgated pursuant to law for the filing thereof, shall be considered as filed on such last day." A return filed March 10 is treated as filed April 15.

Filed under an extension. The extension does not move the start date. Treas. Reg. § 301.6501(b)-1(a) applies the early-return rule only to a return "filed before the last day prescribed by law or regulations for the filing thereof (determined without regard to any extension of time for filing)," and IRM 25.6.1.6.15 says the same. A return filed September 1 under an October 15 extension starts the three years on September 1, not October 15.

Filed late. A late return starts its own three years on the day it is filed; that is what the parenthetical in § 6501(a) means.

The last day. The third anniversary of the filing date (or of the due date, if you filed early) is the IRS's last day to assess. If it is a Saturday, Sunday, or legal holiday, the IRS gets the next business day: IRC Section 7503 covers "the last day prescribed under authority of the internal revenue laws for performing any act," and Treas. Reg. § 301.7503-1(a) applies it to "acts to be performed by the Commissioner," including "the assessment or collection of any tax". A disaster postponement can also help the IRS: under IRC Section 7508A and Treas. Reg. § 301.7508A-1(c)(2), up to a year can be disregarded for "Assessing any tax" when the IRS's guidance for that disaster postpones government acts and your period would have ended inside the window, so read the specific IRS notice. A return filed during a postponement, after the original due date, starts the three years on the day the IRS receives it (IRM 25.6.1.6.15).

What Counts as a Return

The clock starts only when a "return" is filed, and the IRS will sometimes argue that what you filed was not one. The test comes from Beard v. Commissioner, 82 T.C. 766 (1984), and the IRS's manual states it in IRM 25.6.1.10.3.2.1: "The Beard standard is as follows: First, there must be sufficient data to calculate tax liability; second, the document must purport to be a return; third, there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and fourth, the taxpayer must execute the return under penalties of perjury."

A defective-looking return can still pass. In Fowler v. Commissioner, 155 T.C. No. 7 (2020), a return e-filed through a preparer and rejected by the IRS system solely for a missing Identity Protection PIN still started the period: "We therefore hold that an IP PIN is not required to start the limitations period under section 6501(a)". The Supreme Court set the tone long ago in Zellerbach Paper Co. v. Helvering, 293 U.S. 172 (1934): "Perfect accuracy or completeness is not necessary to rescue a return from nullity".

The same goes for a return that left the tax computation blank. In Germantown Trust Co. v. Commissioner, 309 U.S. 304 (1940), the Supreme Court held: "It cannot be said that the petitioner, whether treated as a corporation or not, made no return of the tax imposed by the statute. Its return may have been incomplete in that it failed to compute a tax, but this defect falls short of rendering it no return whatever."

Two limits. Zellerbach also holds that a later amended return does not restart the period the original began, and Badaracco holds that an honest amended return does not start a clock for a year whose original return was fraudulent: "the fraud was committed, and the offense completed, when the original return was prepared and filed."

Where a Return Has To Be Filed

"Filed" means filed with the right office. Treas. Reg. § 1.6091-2 sends individual returns to the local IRS office serving your residence or, as the form instructions direct, the designated service center, with a separate rule for hand-carried returns. Handing a return to the wrong IRS employee may not be a filing at all.

The Ninth Circuit, sitting en banc (the full court rather than a three-judge panel), made that point in Seaview Trading, LLC v. Commissioner, No. 20-72416 (9th Cir. 2023). A partnership return had been faxed to a revenue agent during an audit and later mailed to an IRS attorney: "We conclude that neither action constituted a filing of the return and that the IRS's disallowance of the loss was therefore timely." The IRS's own manual concedes the point only for refund claims, not returns (IRM 25.6.1.10.3.3.1.3).

Dingman went the other way because the Criminal Investigation agents who took the returns were, on those facts, authorized to receive and process them. The working rule: delivery to an IRS employee with authority to receive returns can be a filing; delivery to an auditor or an IRS lawyer usually is not. And filing somewhere else is not filing with the IRS: in Tice v. Commissioner, 160 T.C. No. 8 (2023), returns filed only with the Virgin Islands Bureau of Internal Revenue did not start § 6501(a).

If the IRS Prepared a Substitute for Return

A substitute for return does not start the clock. Section 6501(b)(3): "Notwithstanding the provisions of paragraph (2) of section 6020(b), the execution of a return by the Secretary pursuant to the authority conferred by such section shall not start the running of the period of limitations on assessment and collection." The IRS Filed Your Return? Why It's Too High covers that clock that never started.

What that guide does not cover is what happens when you file a real return afterwards, and here the IRS's manual is on your side. IRM 25.6.1.9.4.5: "The assessment statute period for that tax year will begin with the received date of the taxpayer's signed return." Signing Form 870 or Form 4549 during the audit (Form 4549 is the examination report, Form 870 the waiver of restrictions on assessment; both are the examiner's forms for agreeing to proposed changes), the same passage warns, "does not constitute a return under IRC 6020(a)". Only a signed return starts your clock. A signed return filed after a substitute for return is also the starting point for audit reconsideration, if the IRS's figures have already been assessed.

Step 2: Fix the Mailing Date of the Notice, Then Apply the Suspension

The second date is the day the IRS mailed the notice of deficiency. Not the day you received it, and not the day of assessment.

Mailing Controls

IRC Section 6212(a) authorizes the notice "by certified mail or registered mail," and § 6212(b)(1) says a notice "mailed to the taxpayer at his last known address, shall be sufficient."

The IRS proves the mailing date with a Postal Service form. IRM 4.8.9: "The record of certified and registered mailing is kept on PS Form 3877 together with the certified or registered mail numbers". In Clough v. Commissioner, 119 T.C. No. 10 (2002), a pro se case, the court treated the IRS's certified mail list as a self-authenticating business record: "The Court has recognized that a certified mail list is the equivalent of a Postal Service Form 3877". In Salazar v. Commissioner, T.C. Memo. 2026-9, a 2026 collection case, the settlement officer obtained the notice and the "U.S. Postal Service Form 3877, Firm Mailing Book for Accountable Mail" to verify that the notice went to the taxpayer's last known address. Form 3877 proves the mailing, not the assessment date.

If the notice went to an old address, that raises a different question: whether the notice was valid at all. The IRS must prove it mailed the notice to your last known address, a burden covered in Proving Your Tax Court Petition Was Filed on Time (§ 7502).

The Suspension Under Section 6503(a)

Mailing the notice stops the clock. IRC Section 6503(a)(1): "The running of the period of limitations provided in section 6501 or 6502 ... shall (after the mailing of a notice under section 6212(a)) be suspended for the period during which the Secretary is prohibited from making the assessment or from collecting by levy or a proceeding in court (and in any event, if a proceeding in respect of the deficiency is placed on the docket of the Tax Court, until the decision of the Tax Court becomes final), and for 60 days thereafter."

The prohibited period is the petition window under IRC Section 6213(a): 90 days, or 150 days for a notice addressed outside the United States. If you petition, it runs until the decision becomes final (What Happens After Your Tax Court Decision explains when). The statute covers any case "placed on the docket of the Tax Court," so a late petition that the court later dismisses can stretch the suspension too, until the dismissal is final. A Tax Court case typically takes 6-18 months, and the clock is stopped for all of it, plus 60 days.

Then comes tacking: the days left on the clock when the notice was mailed are added back after the suspension ends.

A pro se collection case shows the arithmetic. In Mirch v. Commissioner, T.C. Memo. 2025-128, the 2006 return was filed October 15, 2007, so the three years ran to October 15, 2010. The notice was mailed June 29, 2010 and no timely petition was filed, so the period was suspended for 150 days (90 plus 60); the IRS calculated 110 days remaining when the notice went out, and with those days "tacked onto the 150 days" the transcript showed the period expiring April 18, 2011. The December 20, 2010 assessment was timely. The petitioners' argument that the period expired October 15, 2010 ignored the suspension, and it loses every time.

The Misconception That Loses Cases

A common pro se error is treating "no assessment yet" as "the period expired." In Bachchan & Gupta v. Commissioner, T.C. Summary Opinion 2024-14, the petitioner argued the period "expired in April of 2021" because no assessment appeared on his transcript. The court answered: "Petitioner misunderstands the process." The return was filed April 10, 2018, so "the three-year period would not have ended until April 10, 2021. Thus, the period was open on March 23, 2021, when" the notice was mailed, and the mailing suspended it. (A summary opinion comes from a small tax case, one with $50,000 or less in dispute per year (Small Case or Regular Case: Which Should You Choose?), and under IRC Section 7463(b) it is not precedent. It is cited for the illustration only.)

The notice has to be mailed within the period; the assessment follows after the case, inside the suspended-and-tacked window. In a collection case the comparison is different, as covered below.

Step 3: Check the Exceptions the IRS Will Plead

If your dates show the notice was mailed after three years, the IRS's answer will plead an exception. These are the IRS's to prove. In Aldridge v. Commissioner, T.C. Memo. 2024-24, a pro se fraud case: "Respondent bears the burden of proving an exception to the general limitations period". Here they are in the order you are most likely to meet them.

Consents: The Form 872 Family

In an ordinary audit case, the exception to check first is a consent you signed. Section 6501(c)(4)(A): "Where, before the expiration of the time prescribed for the assessment of any tax ..., both the Secretary and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon."

Four features of a consent decide most disputes:

  • Both signatures, before expiration. Treas. Reg. § 301.6501(c)-1(d): "The extension shall become effective when the agreement has been executed by both parties". IRM 25.6.22: "To be valid, the consent form evidencing the agreement to extend the period of time to assess tax must be executed by both the taxpayer and the IRS before the statutory period for assessment expires."
  • Each spouse. The same manual: "Thus, each spouse must sign the consent. The signature of one spouse does not extend the statute for the other spouse." One fact-specific exception: in Soni v. Commissioner, T.C. Memo. 2021-137, affirmed by the Second Circuit, a wife who had left every tax matter to her husband and their representative was still bound by consents she never personally signed, because on those facts they had authority to act for her and she had ratified what they did.
  • Fixed date or open-ended. Form 872 ends on a stated date. Form 872-A stays open until either party terminates it with Form 872-T, and the period then expires "90 days after issuance by the IRS or 90 days after the date on which the Form 872-T is received by the office designated". An 872-A nobody terminated keeps the year open.
  • Restricted consents. A restricted consent "extends the assessment statute of limitations for one or more specific issues only. The statute of limitations is allowed to expire on all other issues."

Section 6501(c)(4)(B) also requires the IRS to notify you, each time it asks, of your right to refuse or to limit the extension to particular issues or a particular period; it does that with Letter 907 (or 967) and Publication 1035. The explainer covers those rights at the audit stage.

In court, the consent is tested this way. Kim v. Commissioner, T.C. Memo. 1996-142: "A consent is valid on its face if it identifies the taxpayers, bears their signatures, identifies the year, and is dated prior to the expiration of the existing limitations period. When a taxpayer pleads the issue of the period of limitations, he makes a prima facie case by showing that the notice of deficiency was not mailed within the time provided in section 6501(a). When the Commissioner produces a consent to extend the period of limitations that is valid on its face, the burden is on the taxpayer to show that the consent is invalid or not applicable". (A prima facie case is evidence that wins the point unless the other side answers it.) The test was applied again in Mennemeyer v. Commissioner, T.C. Memo. 2025-80.

Two attacks that have not worked:

  • Pressure. In Evert, the taxpayer signed a Form 872 in August 2018 extending 2015 to April 15, 2020, and the notice issued in April 2019. The petition was amended to plead duress, but duress was not shown. The court decides whether the consent is valid, not whether signing it was wise.
  • Partnership consents. A consent signed at the partnership level under the old TEFRA rules (the partnership audit procedures that applied before 2018) cannot be attacked in your own case (Goldberg v. Commissioner, T.C. Memo. 2021-119, a pro se collection case).

No Return

Section 6501(c)(3): "In the case of failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time." Pair it with § 6501(b)(3): a substitute for return is not your return, so a non-filer's year stays open until a signed return is filed.

The trap inside this exception: "I filed my 1040" does not always mean "I filed the return for that tax." In Couturier v. Commissioner, 162 T.C. No. 4 (2024), the § 4973 excise tax on excess IRA contributions requires its own return, Form 5329, and a Form 1040 without one left that tax open under (c)(3). Congress has since added § 6501(l)(4) to change that result, but only for returns filed on or after December 29, 2022.

Fraud, Including Your Preparer's

Section 6501(c)(1): "In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time."

The burden here is heavy and it is the IRS's. Rule 142(b) puts the burden of proof on fraud on the Commissioner "by clear and convincing evidence," citing IRC Section 7454(a), and Cottman v. Commissioner, T.C. Memo. 2026-88, a September 2026 case brought by a self-represented petitioner, confirms the "Commissioner's burden of proof under section 6501(c)(1) is the same as" the burden for the 75% civil fraud penalty.

In Cottman the notice had been "mailed after the limitations period for assessment under section 6501(a) had run," so the years were open only if the IRS proved fraud. It did, by clear and convincing evidence. If fraud is the only thing keeping your year open and the IRS cannot prove it, the year is closed. The badges of fraud are in The 75% Fraud Penalty: Who Has To Prove It.

Three things about fraud that surprise people.

One spouse's fraud opens the year for both. In Podlucky v. Commissioner, T.C. Memo. 2022-45, a pro se case, fraud by one spouse kept a joint year open for the other. The other spouse's route is Innocent Spouse Relief in Tax Court.

A conviction settles the question, but only for the convicted spouse. In Li & Hu v. Commissioner, T.C. Memo. 2026-42, decided May 2026, a husband convicted of tax evasion under § 7201 was collaterally estopped from denying fraud (his conviction barred him from relitigating it); his wife was not, and could contest fraud for her own limitations period. The court also noted the couple had pleaded correctly: "Petitioners properly plead the period of limitations as a defense in their Petition, and the burden of proof for this issue is on them. Respondent, however, bears the burden of proving that an" exception applies.

Your preparer's fraud counts against you. In Allen v. Commissioner, 128 T.C. 37 (2007), the preparer inflated deductions and the parties agreed the taxpayer himself had no intent to evade tax, but the court held the year open anyway: "We agree with respondent that the special disadvantage to the Commissioner in investigating fraudulent returns is present if the income tax return preparer committed the fraud that caused the taxes on the returns to be understated." The period stays open "regardless of whether the fraud was committed by the taxpayer or the taxpayer's preparer".

The Second Circuit accepted that rule on the taxpayer's concession in City Wide Transit, Inc. v. Commissioner, 709 F.3d 102 (2d Cir. 2013), "without deciding whether certain factual situations might arise that sever the taxpayer's liability from the tax-preparer's wrongdoing". The Federal Circuit disagreed in BASR Partnership v. United States, 795 F.3d 1338 (Fed. Cir. 2015), declining to extend (c)(1) to fraud by an advisor alone.

The Tax Court reaffirmed Allen in Murrin v. Commissioner, T.C. Memo. 2024-10, where the notice issued more than twenty years after the returns. The Third Circuit affirmed on August 18, 2025 (No. 24-2037), holding that taxpayer intent is not required, and the Supreme Court denied certiorari (declined to hear the case) on June 22, 2026 (docket No. 25-988). The split stands.

Could BASR help you? Under Golsen v. Commissioner, 54 T.C. 742 (1970), the Tax Court follows the law of the circuit to which your case can be appealed, and the Federal Circuit hears appeals from the Court of Federal Claims, never from the Tax Court. In the Tax Court, Allen is the rule, and the one appellate court that has rejected it cannot hear your appeal; the BASR rule is reachable only by paying and suing for a refund in the Court of Federal Claims (Tax Court vs. District Court vs. Court of Federal Claims).

The Six-Year Rule for a Substantial Omission

Section 6501(e)(1)(A) gives the IRS six years instead of three if the taxpayer "omits from gross income an amount properly includible therein" and the omitted amount "is in excess of 25 percent of the amount of gross income stated in the return," or is attributable to foreign assets reportable under § 6038D and "is in excess of $5,000." Then "the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time within 6 years after the return was filed."

Three rules in § 6501(e)(1)(B) shape the 25% computation, and two cut against you:

  1. For a trade or business, gross income means receipts "prior to diminution by the cost of such sales or services." Gross receipts, not profit.
  2. "An understatement of gross income by reason of an overstatement of unrecovered cost or other basis is an omission from gross income."
  3. An item "shall not be taken into account" if it "is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the Secretary of the nature and amount of such item." But that escape is expressly "(other than in the case of an overstatement of unrecovered cost or other basis)."

The basis rule has a history to get right if the IRS pleads it. In United States v. Home Concrete & Supply, LLC, 566 U.S. 478 (2012), the Supreme Court held that "§6501(e)(1)(A) does not apply to an overstatement of basis," following its own 1958 precedent. Congress overrode that result in 2015 by adding the basis clause, effective (per the "Notes" tab on Cornell's § 6501 page, not the default view) for returns filed after July 31, 2015 and for earlier returns whose three-year period was still open on that date; Treas. Reg. § 301.6501(e)-1 states the same rule.

For any return you are likely to be litigating today, a basis overstatement counts toward the 25%, and disclosing it does not save you. The omission is the IRS's to prove (Aldridge), and the 25% is measured against the gross income stated on the face of the return.

Two examples show how the yardstick works:

Return as filed Gross income stated 25% line Omitted Period
Wage earner: $60,000 wages, $500 interest $60,500 $15,125 $20,000 of side-job receipts (33.1%) Six years
Same return $60,500 $15,125 $12,000 (19.8%) Three years
Schedule C: $200,000 gross receipts, $150,000 cost of goods sold, $50,000 gross profit $200,000 (receipts before costs) $50,000 $40,000 of receipts (20%) Three years, though it is 80% of the reported profit
Same return $200,000 $50,000 $55,000 of receipts (27.5%) Six years

The denominator is what was reported, not the true total, so the same omitted dollars are a larger percentage for a lower earner, and the gross-receipts rule makes the line harder for the IRS to cross against a business filer than a wage earner. Whether the income was omitted at all is the merits question, covered in The IRS Says You Had Income You Never Reported; for a basis overstatement, see Cost Basis: How To Fight a 1099-B or Crypto Gain.

Six Narrower Exceptions

Amended returns showing more tax, § 6501(c)(7). If the IRS receives a signed document showing additional tax within the 60 days before the period would otherwise expire, the period for assessing that additional amount runs at least 60 days from receipt. A last-minute amended return hands the IRS 60 extra days, for that amount only.

Missing foreign information returns, § 6501(c)(8). If required foreign information (on foreign corporations, foreign assets, and foreign trusts and gifts, under §§ 6038, 6038D, 6046, 6048 and others) is not furnished, the period "shall not expire before the date which is 3 years after the date on which the Secretary is furnished the information". That is three years for the whole return, not just the missing form, unless the failure was due to reasonable cause and not willful neglect, in which case it reaches only the related items. In Fairbank v. Commissioner, T.C. Memo. 2023-19, a year stayed open because Forms 3520 and 3520-A were never filed.

Loss carrybacks, § 6501(h). If the deficiency comes from disallowing a net operating loss or capital loss carried back from a later year, the IRS may assess it for as long as the period for assessing a deficiency for the loss year is still open. For a disallowed carryback, count from the loss year's return, not the earlier year's. Net Operating Loss Disallowed? The Section 172 Tax Court Guide covers NOL disputes in full.

A hobby-loss election, § 183(e)(4). If you elected under IRC Section 183(e) to postpone the presumption that your activity is engaged in for profit, you traded away part of this defense: for any deficiency attributable to that activity, the period "shall not expire before the expiration of 2 years after the date prescribed by law (determined without extensions) for filing the return" for the last year of the five-year (or seven-year) presumption window, for every year the election covers (How To Prove Your Activity Is a Business, Not a Hobby).

Undisclosed listed transactions, § 6501(c)(10). The period does not expire before "1 year after the earlier of" the date the information is furnished or the material advisor's compliance under § 6112.

Criminal restitution, § 6501(c)(11). Restitution ordered in a criminal tax case may be assessed at any time (Dawveed v. Commissioner, T.C. Memo. 2023-28, a pro se collection case).

Step 4: Plead It

Nothing in Steps 1 through 3 matters if the defense is not in your pleadings. Pro se petitioners break this rule often, and the court does not bend it.

In the Petition

Rule 39 is explicit: "A party shall set forth in the party's pleading any matter constituting an avoidance or affirmative defense, including res judicata, collateral estoppel, estoppel, waiver, duress, fraud, and the statute of limitations. A mere denial in a responsive pleading will not be sufficient to raise any such issue." An affirmative defense is a reason you win even if the IRS's numbers are right, and it is yours to raise.

Rule 34(b)(1)(G) requires "In separately lettered paragraphs, clear and concise assignments of each and every error ... Any issue not raised in the assignments of error will be deemed conceded," and Rule 34(b)(1)(I) requires "Any special matters as required by Rule 39." An assignment of error is a lettered paragraph saying what the IRS got wrong.

On the court's simplified petition, Form 2, item 5 asks you to "Explain why you disagree with the IRS action(s) in this case (please list each point separately)" and item 6 to "State the facts upon which you rely (please list each point separately)." The court's filing guidance says to list each issue on line 5 with its own letter or number and to give the facts on line 6 in the same order. So the defense goes in item 5 as its own lettered point, with the dates in item 6. As an illustration of what an allegation looks like (not a template for your facts):

Item 5, point (c). The IRS mailed the notice of deficiency for tax year 2021 on May 5, 2025, after the three-year period for assessment under IRC section 6501(a) had expired. The IRS therefore may not assess the deficiency, and the Court should determine there is no deficiency (IRC section 7459(e)).

Item 6, point (c). I filed my 2021 Form 1040 on March 10, 2022, before its April 18, 2022 due date, so it is treated as filed on April 18, 2022. I did not sign any agreement extending the period for assessment. The notice of deficiency is dated May 5, 2025 and was mailed on that date. No substitute for return was prepared for 2021.

If you did sign a Form 872, say so and give its dates. Attach only the notice of deficiency, which Rule 34(b)(2) requires; keep the return, the mailing proof, and any consent for the stipulation (the written agreement on undisputed facts and documents that you and the IRS attorney file before trial; Step 5). Form 2 has no separate box for the relief you want, so the "no deficiency" request sits at the end of item 5, with the overpayment request if you have already paid. How To File Your Tax Court Petition covers the rest of the form and the $60 fee.

Two things about the rest of item 5. First, the other lettered points should be your disagreements with the tax itself, because Rule 34(b)(1)(G) treats any issue not raised as conceded: if the IRS proves an exception, a petition that pleaded only the statute leaves the deficiency uncontested. Second, each year has its own clock, started by that year's return and extended only by that year's consents or exceptions, so a notice covering three years can be timely for one and late for another; the petition should say which years are barred. (In Cottman, a consent signed during the 2012 examination extended 2009 and 2010 only, and only until 2014.)

In the Reply

The IRS has 60 days to answer. If you pleaded the bar, the answer will plead the exception (a consent, fraud, an omission) as its own affirmative allegation. Under Rule 37(a) you have 45 days from service of the answer to reply. Under Rule 37(c), any affirmative allegation you do not expressly admit or deny in your reply is deemed admitted, and if you file no reply at all, the IRS can move to have those allegations deemed admitted. Deny what you dispute, fact by fact. What Happens After You File Your Tax Court Petition walks through the reply.

Amending the Petition

If you filed without pleading the defense (or without asking for the overpayment), Rule 41(a) is the fix: "A party may amend a pleading once as a matter of course at any time before a responsive pleading is served. ... Otherwise a party may amend a pleading only by leave of Court or by written consent of the adverse party, and leave will be given freely when justice so requires." In practice: before the IRS answers, file an amended petition, no permission needed. After the answer, either the IRS attorney's written consent or a motion for leave to amend, which under the same Rule "must state the reasons for the amendment and must be accompanied by the proposed amendment." Under Rule 41(d), the amendment "relates back to the date of the original pleading," so the defense counts as raised when you first filed (What Happens After You File Your Tax Court Petition covers the motion). Evert is the model: the petition was amended to add the duress argument, which lost on the merits but was heard.

The Cost of Silence

In Tuma v. Commissioner, T.C. Memo. 2024-71, the pro se petitioners raised the statute for the first time in a brief filed after trial. The court: "Parties must set forth the defense of the statute of limitations in their pleadings. Rule 39. As petitioners failed to properly plead this issue, we do not consider it other than to note that, even if it had been pleaded properly, petitioners also failed to provide any evidence as to when they filed their 2016 return." Two failures in one sentence, and either alone would have been fatal.

Step 5: Prove It

The Tax Court's phrase is the "burden of going forward," and it moves back and forth in a limitations case in a way that decides who wins when the evidence is thin.

Who Proves What

The general rules are in Burden of Proof in Tax Court, the home of Rules 39 and 142. Here is the limitations version.

The defense is yours to plead and prove. Robinson v. Commissioner, 117 T.C. 308 (2001): "The statute of limitations is an affirmative defense, and the party interposing it must specifically plead it and carry the burden of showing its applicability."

Soni lists what you must show: "To establish this defense, taxpayers must make a prima facie case showing the date they filed their return, the expiration date of the period of limitations based on that filing date, and receipt or mailing of the SNOD after the running of that period." (SNOD is the statutory notice of deficiency.)

Then the burden moves. In Meyer v. Commissioner, T.C. Memo. 2024-15, the court restated the sequence, quoting a 1990 decision: once you make that showing, "the burden going forward with the evidence shifts to [the Commissioner] who must then introduce evidence to show that the bar of the statute is not applicable. Where [the Commissioner] makes such a showing, the burden of going forward then shifts back to the party pleading the affirmative defense to show that the alleged exception to the expiration of the period is invalid or otherwise inapplicable." But "the burden of proof, i.e., the burden of ultimate persuasion . . . never shifts from the party who pleads the bar of the statute of limitations."

In plain terms:

  1. You show the filing date, the expiration date, and that the notice was mailed after it.
  2. The IRS must then produce evidence that an exception applies: a Form 872 valid on its face (Kim), an omission over 25%, fraud.
  3. For a consent, you then have to show it is invalid or does not apply (Kim). For the six-year rule and for fraud, the burden of proving the exception is the IRS's (Aldridge), and on fraud it must meet the clear-and-convincing standard of Rule 142(b) and § 7454(a).

The burden that "never shifts" is the burden on the three dates. It does not make you disprove fraud or a 25% omission.

Proving the Filing Date

This is where Tuma was lost, and it is the element you control.

The account transcript. Transaction code 150 marks the return posting, and the transcript header shows the return received date (How To Read IRS Transcript Codes decodes it; How To Get and Read Your IRS Transcripts explains how to pull it). The IRS's manual says the ASED "is determined by the received date or due date of the original return whichever is later" (IRM 25.6.1.5), and adds a caution that helps if the transcript date looks wrong: "The Received Date does not necessarily establish the filing date. The filing date is established after applying IRC rules" (IRM 25.6.1.6.14).

Two transcript entries that mislead. Transaction code 494 means a notice of deficiency was generated. Treat its date as a pointer, not as proof of the mailing date, which the notice itself and the IRS's certified mail list prove; and some underreporter (CP2000) notices go out with no TC 494 at all. A substitute for return shows as a TC 150 for $0.00 with "SFR" beside it; it is not your return and does not start the three years (Step 1).

The IRS's own copy of your return. A Form 4506 request ($30 per return) gets you the return as the IRS received it, received-date stamp included; the IRS treats that stamp, or a handwritten received date, as the return's received date. A practitioner with a power of attorney can also pull the IRS's internal TXMODA transcript, which shows the ASED the IRS is working to; you cannot get it through Get Transcript.

The mailbox rule, for a timely mailing only. If you mailed the return on time and the IRS received it late, IRC Section 7502(a)(1) makes the postmark date the filing date, and registered mail is "prima facie evidence that the return ... was delivered" (§ 7502(c)(1)); Treas. Reg. § 301.7502-1(e)(2)(i) extends that to certified mail. The limit: § 7502 applies only to a postmark on or before the due date. A return mailed late is filed when received. Proving Your Tax Court Petition Was Filed on Time (§ 7502) covers the mechanics.

Your own proof. The certified mail receipt and USPS tracking; the e-file acceptance (or, in a Fowler situation, the rejection notice with proof of what was transmitted); the preparer's transmission record; a dated copy of the return. How To Prepare Your Evidence for Tax Court covers getting documents into the record.

Proving the Mailing and Assessment Dates

The IRS holds the mailing evidence (the Form 3877 or certified mail list, and the dated notice), and the mailing date is rarely disputed; ask the IRS attorney to stipulate it (How To Handle Discovery and Pretrial Preparation in Tax Court covers the informal requests that come first). Keep the envelope the notice came in: its postmark and certified mail number are your side of the same record. If the IRS relies on a Form 872 you never kept, ask the IRS attorney for it or request it under the Freedom of Information Act.

In a collection case the third date is the assessment date, proved with Form 4340, Certificate of Assessments, Payments, and Other Specified Matters. Mirch: "Form 4340 and a taxpayer's transcript are presumptive evidence a tax was validly assessed, absent a showing of irregularity". You cannot beat a Form 4340 with a bare assertion, but it also fixes the assessment date you compare against the ASED.

Stipulate the Dates, Then Consider Summary Judgment

Rule 91(a)(1) requires the parties to stipulate "to the fullest extent to which complete or qualified agreement can or fairly should be reached" on facts and documents, and the filing date, the notice date, the Form 872, and the Form 3877 are exactly the documents to stipulate (The Stipulation of Facts in Tax Court: Rule 91 Explained).

Once the dates are stipulated, the defense is often a pure question of law, and a natural motion for summary judgment. Rule 121(a)(2): "The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

The motion may be filed "at any time beginning 30 days after the pleadings are closed" and "no later than 60 days before the first day of the Court's session at which the case is calendared for trial" (Rule 121(b)(1)). Fowler and Li & Hu were both decided on cross-motions, and in Fowler the petitioner's was granted. If the IRS moves first, Rule 121(d) means you cannot rest on your petition; you must respond with evidence.

Document Checklist

  • Account transcript for each year: the TC 150 date and the return received line (IRS.gov Get Transcript, or by mail)
  • Wage and income transcript, if the IRS pleads a 25% omission (Get Transcript)
  • Your copy of the return as filed, with the certified mail receipt or e-file acceptance (your records or your preparer; or the IRS's stamped copy by Form 4506, $30)
  • Every Form 872, 872-A, or 872-T, with both signature dates (your records; otherwise the IRS attorney or a FOIA request)
  • Letter 907 or 967 and Publication 1035, if you received them (your records)
  • The notice of deficiency, with its envelope (your records; the postmark and certified mail number are on the envelope)
  • Form 3877 or the certified mail list (the IRS attorney, or the settlement officer in a CDP case)
  • Form 4340 (collection cases; the settlement officer or the IRS attorney)
  • Any amended return and the date the IRS received it, for § 6501(c)(7) (your records; the account transcript shows the posting)
  • Any foreign information returns and their filing dates, for § 6501(c)(8) (your records)
  • The IRS's own ASED figure (TXMODA; only through a practitioner with a power of attorney)

If You Are in a CDP Case Instead

If the IRS has already assessed and is moving to lien or levy, the date under review is the assessment date: was it made before the ASED, counting the suspension a notice of deficiency triggers (Step 2)? You raise it at the collection due process hearing, requested on Form 12153, Request for a Collection Due Process or Equivalent Hearing, within 30 days of the lien or levy notice (Collection Due Process Hearings: Your Right To Challenge IRS Liens and Levies). If Appeals rules against you, IRC Section 6330(d)(1) gives you 30 days from the notice of determination to petition the Tax Court (Lost Your CDP Hearing? The IRC 6330 Tax Court Guide covers that case). And the framing matters more here than anywhere else in this guide, because there is one argument but two routes into court, with different rules.

The Merits Route, and Who Is Barred From It

The Tax Court's rule is that saying the period ran is a challenge to the tax itself. In Boyd v. Commissioner, 117 T.C. 127 (2001), a pro se levy case, the court reviewed a limitations claim de novo (fresh, on the merits), citing an earlier case for the rule that "a claim that the limitations period has expired constitutes a challenge to the underlying tax liability". Hoffman repeated it the next year: "Raising the issue of whether the limitations period has expired constitutes a challenge to the underlying tax liability." Dingman and Goldberg say the same.

That matters because § 6330(c)(2)(B) lets you challenge "the existence or amount of the underlying tax liability" only if you "did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." Treas. Reg. § 301.6330-1(e)(3), Q&A-E2, defines the first: "Receipt of a statutory notice of deficiency for this purpose means receipt in time to petition the Tax Court for a redetermination", and an Appeals conference offered after the assessment also counts as an opportunity. So if you received the notice in time to petition and did not, the Tax Court cannot decide the limitations question fresh in the CDP case, however you phrase it. In Salazar a § 6751(b) argument was barred for exactly that reason; Goldberg is the partnership version.

The readers who can litigate the defense itself in a CDP case are the ones who never received a notice of deficiency, and every CDP case in this guide where the court decided the limitations question is one of them: Boyd (the IRS conceded the petitioner "received no notice of deficiency for any year in issue"), Hoffman (the assessment followed an amended return, with no notice), Dingman ("respondent did not issue notices of deficiency and petitioner had no opportunity to dispute the underlying tax liabilities"; the pro se petitioner won on the filing dates), and Mirch (no notice received, the question decided fresh, lost on the suspension arithmetic).

The Verification Route, Which Everyone Keeps

Whether or not you had a prior opportunity, IRC Section 6330(c)(1) applies: "The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met." A timely assessment is one of those requirements. In Moore v. Commissioner, T.C. Memo. 2026-85, a September 2026 lien case brought by a self-represented petitioner, the court, quoting an earlier opinion, listed the items the officer must verify, beginning with "the IRS's timely assessment of the liability" under §§ 6201(a)(1) and 6501(a), and in Hoyle v. Commissioner, 131 T.C. No. 13 (2008), a pro se lien case, the court held: "Held: This Court will review whether R's Appeals officer verified compliance with applicable law under sec. 6330(c)(1), I.R.C., i.e. whether a duly mailed notice of deficiency preceded the assessment of tax as required by sec. 6213(a), I.R.C., without regard to whether P raised the issue at the Appeals hearing."

What the court does on this route is different. It reviews the officer's verification for abuse of discretion, not the statute question fresh, and if the record does not show the check, the remedy is a remand: in Hoyle the court sent the case back "for it to clarify the record as to what the Appeals officer relied upon". But the stakes are real. Hoyle again: "Under sections 6321 and 6322, a tax lien arises in favor of the United States at the time an assessment is made. If respondent did not validly assess petitioner's 1993 tax liability, then no lien would have arisen with respect to that tax liability and collection could not proceed." (IRC Section 6322; Federal Tax Liens; IRS Levies.) In Hoffman, the levy proposed for barred amounts was held "improper".

Moore is the caution. The officer had confirmed an assessment for each period, a mailed notice and demand, and a balance due, and the court held that was enough: verification does not require the officer to hunt through the record for every possible problem, and a general doubt about the amounts puts nothing in issue. So put the ASED question to the settlement officer in writing, with your dates, and ask for the Form 4340 (which shows the assessment dates) and the Form 3877 (which shows the mailing of the notice); Salazar shows an officer obtaining the Form 3877 to check the mailing.

No Refund in a CDP Case

One more limit. The Tax Court cannot determine an overpayment or order a refund in a CDP case. In Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006), a pro se case: "we lack jurisdiction under section 6330 to determine any overpayment or to order a refund or credit". The Supreme Court confirmed it in Commissioner v. Zuch, 605 U.S. 422 (2025): § 6330(e)(1) "does not authorize the Tax Court to order a refund or to issue a declaratory judgment that resolves disputes about tax liability," and a taxpayer whose payments the IRS kept "may file a postdeprivation suit for a refund" instead. A CDP win stops the collection; money already taken comes back only through a refund claim (next section).

The other clock is raised the same way. Under IRC Section 6502, a timely assessed tax may be collected "by levy or by a proceeding in court, but only if the levy is made or the proceeding begun ... (1) within 10 years after the assessment of the tax." That collection period (10 years from assessment), the CSED, is the explainer's subject; a CSED challenge is also a verification issue under (c)(1).

If You Missed the Petition Deadline

If the 90 days passed without a petition, the IRS will assess, and in most of the country the limitations defense does not survive in Tax Court. In the states covered by four federal appeals courts (the Second, Third, Sixth and Eighth Circuits), a late petition can be excused in rare cases, but if you try and fail, the Court enters a decision that you owe the full amount in the notice, which can end the defense for good; see Where You Live Changes the Answer. Otherwise, two narrower routes remain.

First, verification. When a lien or levy notice arrives, a timely CDP request puts the assessment in front of a settlement officer who must verify it was made in time (Moore, Hoyle). Because you received the notice of deficiency, § 6330(c)(2)(B) keeps the Tax Court from ruling on the statute itself; what you get is a check of the record, and if the assessment was invalid, no lien arose and collection cannot proceed (Hoyle).

Second, refund. Anything assessed or collected after the period ran is an overpayment under § 6401(a), which the Tax Court cannot order back in a CDP case (Greene-Thapedi, Zuch). The claim goes on Form 1040-X within the § 6511 periods (3 years from filing, 2 years from payment). If the IRS denies it, Zuch names the next step, a refund suit outside the Tax Court, and that step has a price: under Flora v. United States, 362 U.S. 145 (1960), the law "requires full payment of the assessment before an income tax refund suit can be maintained," so any part of the barred assessment still unpaid has to be paid before you can sue (Tax Court vs. District Court vs. Court of Federal Claims covers the sequence and its own deadlines). The claim itself costs nothing to file, and on a clear record the IRS can abate the unpaid balance on its own authority under § 6404(a). The other options after a missed deadline are in You Missed the 90-Day Deadline: Now What?.

The IRS's Counter-Moves: Mitigation and Equitable Recoupment

Two doctrines let a closed year be reopened in limited ways, and you may meet either in the IRS's answer.

Mitigation, §§ 1311 to 1314. Under IRC Section 1311(a), where a "determination" (a court decision, a closing agreement, or certain other final actions) fixes an item one way, the same item was treated inconsistently in a year now closed, and correction "is prevented by the operation of any law or rule of law," then "the effect of the error shall be corrected by an adjustment made in the amount and in the manner specified in section 1314."

In plain terms, a decision about an item in an open year can reopen a closed year for that item, if one of the specific "circumstances of adjustment" in § 1312 applies. The elements are technical and strictly applied.

Equitable recoupment, § 6214(b). IRC Section 6214(b) denies the Tax Court jurisdiction over other years but adds that it "may apply the doctrine of equitable recoupment to the same extent that it is available in civil tax cases before the district courts of the United States and the United States Court of Federal Claims." Recoupment offsets a time-barred tax or refund against a timely one arising from the same transaction. It is a defense, not a claim, and usually the IRS's.

If either appears in the IRS's answer, see When To Get Help below.

A Worked Timeline

Take a 2021 Form 1040, due April 18, 2022 (that year's deadline, because of the Emancipation Day holiday observed in Washington, D.C.). It was filed March 10, 2022, so it is treated as filed April 18, 2022, and the three years run to April 18, 2025. No substitute for return, no amended return.

Variant What happened Result
A. Late notice Notice mailed May 5, 2025. No consent. No exception pleaded and proved. Barred. If pleaded (Step 4) and proved (Step 5), the decision is no deficiency under § 7459(e).
B. Consent You signed Form 872 on March 1, 2025 and the IRS signed March 6, 2025, extending the period to December 31, 2025. Notice mailed May 5, 2025. Timely. Both signatures preceded April 18, 2025, and the notice fell inside the extended period.
C. Timely notice, then a case Notice mailed February 1, 2025, with 76 days left on the clock. You petition. Suspended through the case and for 60 days after the decision becomes final, then the 76 days are tacked on: the IRS has 136 days after finality to assess.
D. Filed under extension Return filed September 1, 2022 under an extension to October 17, 2022. Three years from September 1, 2022, not October 17: the period runs to September 1, 2025.
E. Filed late Return filed June 1, 2024, more than two years late. The period runs from the late filing date to June 1, 2027.
F. Never filed No return; the IRS prepared a substitute for return in 2024. No period is running (§ 6501(b)(3), (c)(3)). A signed return filed August 1, 2026 starts three years from that date.

Variant B is why the IRS asks for a consent near the deadline, and Variant C is why the assessment you find on a transcript years later is not late.

Common Mistakes

Each of these has a decided case behind it.

  1. Raising the statute for the first time at trial or in a brief. Not considered (Tuma, Rule 39).
  2. Pleading it with no evidence of the filing date. The prima facie case fails on its first element (Tuma, Soni).
  3. Treating "no assessment on my transcript" as "the period expired." The notice suspends the period; the assessment comes later (Bachchan, Mirch).
  4. Comparing the date you received the notice to the deadline. Mailing controls, and the IRS proves it with Form 3877 (Clough).
  5. Assuming a consent signed under pressure is void. Duress has to be proved, and the court decides validity, not wisdom (Evert).
  6. Assuming your spouse's fraud, or your preparer's, does not affect you. It does (Podlucky; Allen, Murrin).
  7. Assuming a return handed to an auditor or an IRS lawyer was "filed." Usually it was not (Seaview).
  8. Assuming the substitute for return started the clock. Only your signed return does (§ 6501(b)(3), IRM 25.6.1.9.4.5).
  9. Assuming an extension moved the start date for an early-filed return. It did not (Treas. Reg. § 301.6501(b)-1(a)).
  10. Assuming a large basis error is safe because you disclosed it. Since 2015 it counts toward the 25%, disclosure or not (§ 6501(e)(1)(B)).
  11. In a collection case, expecting a fresh ruling on the statute after you received the notice of deficiency and did not petition. Arguing the period ran is a challenge to the underlying liability, barred under § 6330(c)(2)(B) however it is phrased (Boyd, Hoffman, Goldberg). What remains is verification: put the dates to the officer in writing and ask for the Form 4340 and Form 3877 (Hoyle, Moore).

What To Do Now

  1. Pull your account transcript for each year in the notice. Note the TC 150 posting and the return received date, and gather your own proof of when you filed (Step 1).
  2. Work out three dates. The date your return counts as filed, the date three years later, and the date the notice was mailed. If the notice was mailed inside the three years, it was timely, and an assessment after your case is not late either (Step 2).
  3. Check whether you signed an extension. Look for any Form 872, 872-A, or 872-T and note both signature dates (Step 3).
  4. Put the defense in your petition. Give it its own lettered point in item 5 of Form 2, with the dates in item 6, and file within 90 days of the notice date (150 days if it was addressed to you outside the United States). If you already filed without it, amend under Rule 41: as of right before the IRS answers, and after that with the IRS attorney's written consent or the court's leave (Step 4).
  5. Reply to the IRS's answer. If it pleads a consent, fraud, or an omission, file a reply within 45 days of service denying each allegation you dispute (Step 4).
  6. Stipulate the dates, then consider summary judgment (Step 5).
  7. In a CDP case, raise the ASED with the settlement officer in writing, with your dates, and ask for the Form 4340 and the Form 3877. If you never received the notice of deficiency, the Tax Court can decide the defense itself; if you did, it reviews the officer's verification (Boyd, Hoyle).
  8. If the petition deadline has passed, the routes left are usually CDP verification and a Form 1040-X refund claim for anything assessed or collected after the period ran; see If You Missed the Petition Deadline for the rare exception and its risk.

When To Get Help

If the dates are clean and the IRS's answer pleads nothing more than the general rule, this is a defense a careful self-represented petitioner can plead, stipulate, and win on a motion. Around 89% of Tax Court petitioners represent themselves, and many of the opinions in this guide were decided for, or against, someone who did. Clean dates are also the natural opening for an early settlement conversation with the IRS attorney (How To Settle Your Tax Court Case). Expectations, from the cases in this guide: the defense fails more often on the suspension arithmetic (Mirch, Bachchan), a consent valid on its face (Kim, Evert, Mennemeyer), or missing proof of the filing date (Tuma) than on the law. If the answer pleads fraud, a partnership-level consent, mitigation, or equitable recoupment, the case has become one where professional help changes outcomes.

If you win and the IRS's position was not substantially justified, IRC Section 7430 lets the court award "reasonable court costs" and fees "paid or incurred" for an attorney or another individual "authorized to practice before the Tax Court or before the Internal Revenue Service"; it does not pay you for your own time. Refusing to extend the statute cannot be held against you: under § 7430(b)(1), "Any failure to agree to an extension of the time for the assessment of any tax shall not be taken into account" on the exhaustion requirement. And a written "qualified offer" under § 7430(g), labeled as one and made between the first letter offering Appeals review and 30 days before the first trial date, makes you the prevailing party if the final result is at or below it. The claim is a separate motion under Rule 231, filed within 30 days after the opinion is served; Rule 34(f) says it "must not be included in the petition".

If your income is at or below 250% of the poverty line (about $39,900 for a one-person household, plus $14,200 for each additional member) and your dispute is at or below $50,000, a Low Income Taxpayer Clinic can represent you at no cost, and can check your ASED arithmetic before you file anything. For paid options, see When and How To Get Professional Help With Your Tax Dispute.

Resources

Statutes:

Regulations:

IRS guidance:

Tax Court rules and forms:

Cases cited:

Companion articles on TaxCourtHelp:

This article is for informational purposes only and does not constitute legal or tax advice. For advice specific to your situation, consult a qualified tax professional or attorney.

Read more

TaxCourtHelp.com is not affiliated with the United States Tax Court or any government agency. This site provides general information only and does not constitute legal or tax advice.