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Court Denies Refund Claim Because Taxpayer Missed Deadline for Changing Filing Status

(Parker Tax Publishing October 2021)

A district court held that the IRS properly denied a taxpayer's claim for a refund because her claim, filed on an amended return, sought to change her filing status from married filing separately to married filing jointly outside of the three-year period for changes of election status in Code Sec. 6013(b). The court concluded that the three-year period for changing a taxpayer's filing status applies without regard to any extensions and cannot be read to contain an equitable tolling provision. Huff-Rousselle v. U.S., 2021 PTC 299 (D. Mass. 2021).


On April 15, 2013, Peter Huff-Rousselle filed a Form 4868, Application for Extension of Time to File Individual Income Tax Return, to request an extension of time to file his 2012 tax return, and paid an estimated tax payment of $20,000 for the 2012 tax year. His request did not include his wife Margaret Huff-Rousselle's name or social security number. Margaret claimed that she filed her own Form 4868 for 2012, but the IRS had no record of her extension request.

On November 12, 2014, nineteen months after the April 2013 deadline for the return, Margaret filed her 2012 tax return with a status of married filing separately. She made this election in part because of her husband's medical condition. Peter passed away on June 24, 2015, without having filed a tax return for the 2012 tax year. On October 15, 2016, Margaret filed an amended tax return on a Form 1040X, which she filled out as a joint return with the status of married filing jointly. The amended return reported a 2012 tax liability of $45,106 for the Huff-Rousselles against $52,253 in payments (which included estimated payments made by Peter with his 2012 Form 4868 and credits on his account from prior years' overpayments). The proposed amended return requested a refund of the difference: $7,147.

The IRS denied the refund claim, asserting that Code Sec. 6013(b)(2)(A) does not allow amended returns based on a married couple's change of election of filing status to be filed three or more years after the original due date. Margaret brought an action in district court for a refund.

Under Code Sec. 6511(a), a claim for a refund or credit of an overpayment must be filed within the later of three years from when the return was filed or two years from the time the tax was paid. In U.S. v. Brockamp, 519 U.S. 347 (1997), the Supreme Court held that a prior version of Code Sec. 6511 was not subject to equitable tolling. The following year, Congress amended the statute to provide that certain deadlines in Code Sec. 6511 may be suspended during any period that the taxpayer is financially disabled. The tolling provision in Code Sec. 6511(h) is narrow and suspends the deadlines only under Code Sec. 6511(a), (b), and (c), and only where the individual meets the definition of being financially disabled.

Under Code Sec. 6013(b), a taxpayer may switch to a joint return after initially electing to file as married filing separately. Code Sec. 6013(b)(2)(A) provides that amendments to filing status must be made no later than three years from the due date for filing the return for that tax year, determined without regard to any extensions of time granted to either spouse. Unlike Code Sec. 6511, Code Sec. 6013(b) does not contain a tolling provision and does not extend the three-year deadline to reflect any extensions to file obtained by the taxpayer.

In her complaint, Margaret pointed out that she had filed a Form 4868 to obtain a six-month extension to file her 2012 return and argued that her husband's declining health prior to his death should have suspended the statute of limitations for filing the return. The government responded with a motion for summary judgment, contending that Margaret's Form 1040X improperly sought to change her 2012 filing status more than three years after the deadline to file the return. Specifically, because the 2012 return was due April 15, 2013, the government said that the time to change Margaret's election status expired on April 15, 2016. Thus, the Form 1040X filed on October 15, 2016, was six months too late. The government reasoned that, because the three-year period under Code Sec. 6013(b)(2)(A) is without regard to any extensions of time granted by the IRS to file the original return, Margaret's assertion that she obtained a six-month extension was ultimately immaterial.


The district court granted the government's motion for summary judgment after finding that the IRS properly applied the Code when it denied Margaret's refund claim as an untimely change of status under Code Sec. 6013(b)(2)(A).

First, the court found that the limitations in Code Sec. 6013(b)(2) applied to Margaret even though Peter never filed a 2012 return (and thus never made an election as to his filing status). The court reasoned that although Code Sec. 6013(b) was primarily aimed at cases where both spouses previously elected to file separate returns, Congress did not narrow the reach of Code Sec. 6013(b) to reach only these cases - as evidenced by the repeated use of the singular "return" when referencing the previously filed separate returns. Moreover, the court found that Congress expressly contemplated those cases where only one spouse filed a separate return in Code Sec. 6013(b)(3)(A), which sets forth the date a joint return should be deemed to have been filed, and which depends on whether both spouses filed separate returns prior to making the joint return or only one spouse filed a separate return prior to the making of the joint return.

Next, the court determined that Margaret was not excused from the three-year limitations period in Code Sec. 6013(b)(2)(A) because of her husband's medical condition. The court said that, for the same reasons that the Supreme Court concluded in Brockamp that the three-year period in Code Sec. 6511 (before Congress amended it) was not subject to equitable tolling, equitable tolling is also not available for the three-year provision in Code Sec. 6013(b)(2)(A). Those reasons included the language of the statute, which in the court's view could not easily be read as containing implicit exceptions, and the avoidance of the administrative problems that would arise if the IRS had to respond to a large number of late requests for equitable tolling. The court noted that Congress responded to the Brockamp decision not by adding a broad-reaching tolling provision but rather with a targeted and stringent provision that, by its terms, extends only certain specifically enumerated periods, which does not include the three-year period for change of election status in Code Sec. 6013(b)(2). The court therefore concluded that Congress did not intend the equitable tolling doctrine to apply to the time limitations in Code Sec. 6013((b)(2). The court remarked that, while the result may seem unfair, it was the result required by the statutory scheme.

For a discussion of changes in filing status after a return is filed, see Parker Tax ¶10,570. For a discussion of filing joint tax returns, see Parker Tax ¶250,115. For a discussion of the time for filing a refund claim, see Parker Tax ¶261,110.

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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