This post got lost and so comes onto the site about six months after I wrote it, but it still might be of interest to some. Thanks to Jack Townsend for asking about it. I wrote it just before I took off on my cross country bicycling trip and failed to keep a good track on it as it went to my research assistant. Keith
The Tax Court held in Borenstein v. Commissioner, 149 T.C. 263 (2017) that a taxpayer who filed her return late and after the IRS had issued a notice of deficiency could not obtain a refund given the specific timing of her late return and the notice of deficiency. We discussed the case here. The interpretation of the IRS and the Tax Court in the case created an odd “donut-hole” in the statute during which the taxpayer could not file a late return and obtain a refund if during the applicable time the IRS had sent a notice of deficiency.
The Tax Court reached the decision in the case by interpreting the plain language of the statute and applying an interpretive maxim. The Second Circuit did not find the language as plain or the maxim as applicable and reversed the decision of the Tax Court allowing Ms. Borenstein to receive a refund of almost $40,000 plus interest. The tax clinic at the Legal Services Center of Harvard partnered with the tax clinic at Georgia State to file an amicus brief in support of Ms. Borenstein because we thought his issue likely to impact low income taxpayers.
Ms. Borenstein filed a request to extend the time to file her 2012 individual income tax return from April 15, 2013 to October 15, 2013. Even though she timely and properly filed the request for an extension of time to file her return, she failed to file the return by the extended due date. She had a lot of stock sales. The IRS assigned a zero basis to the stock and eventually sent her a notice of deficiency stating that she owed over $1 million in taxes largely resulting from the sale of stock. The IRS sent the notice of deficiency on June 19, 2015. Ms. Borenstein filed her return, showing an almost $40,000 refund because her stock did not have a zero basis, on August 29, 2015.
Because of the timing of the notice of deficiency and of the late filed return, the IRS took the position that IRC 6213(b)(3) prohibited her from obtaining a refund. The facts in the case were not in dispute. The only issue was the interpretation of the statute and whether it created an unusual donut-hole time period during which a taxpayer could not file their return and obtain a refund, as the IRS argued, or whether the taxpayer had a continuous time period within which to file the return and still obtain a refund.
Because this is the first and only case seeking an interpretation of the statute on this issue and because the administrative importance is low as signaled by the lack of litigation over the 20-year span since the statutory provision at issue came into existence, it seems extremely unlikely that the IRS will seek certiorari in this case. Whether it will make the same argument if the issue arises in another circuit remains to be seen. I hope that the opinion will cause it to rethink its position.
Congress took a look at IRC 6213 and the refund provision in it after the Supreme Court decided the case of Commissioner v. Lundy, 516 U.S. 235 (1996). Lundy involved the look back period for refund claims and produced a surprising result causing the changes to the statute. The Second Circuit described the Congressional intent in changing the statute as follows:
A taxpayer who files a tax return, and within three years after that filing is mailed a notice of deficiency from the Commissioner, is entitled to a look‐back period of at least three years. However, prior to Congress’s amendment of the governing statute, a taxpayer who had not filed a return before the mailing of a notice of deficiency‐‐like Borenstein‐‐was entitled only to a default two‐year look‐back period. Accordingly, Congress, seeking to extend the look‐back period available to such non‐filing taxpayers, provided that if a notice of deficiency is mailed “during the third year after the due date (with extensions) for filing the return,” and if no return was filed before the notice of deficiency was mailed, the applicable look‐back period is three years. This is called the “flush
language” of 26 U.S.C. § 6512(b)(3).
Ms. Borenstein filed her return during the third year after the original due date of the return and after the notice of deficiency. If Congress had not changed the statute, the Lundy case would have prevented her from obtaining a refund because she filed the return more than two years after the original due date and after the issuance of the statutory notice. She argued that the change in the statute opened the door for her to obtain the refund, but the IRS said if you carefully looked at the statute it did not work that way for someone who had requested an extension of time to file the return and then filed late. Looking at the language of the statute quoted above, the IRS argued and the Tax Court accepted that:
“(with extensions)” has the effect of delaying by six
months the beginning of the “third year after the due date, ….”
Under this interpretation, the Tax Court could only look back two years. She had no payments within the two-year period as her payments were deemed made on the original due date of the return.
Borenstein looked at the statute and found different meaning:
Borenstein argues that “(with extensions)” has the effect of extending by six months the “third year after the due date,” and therefore that the notice of deficiency, mailed 26 months after the due date, was mailed during the third year. That would mean that the Tax Court has jurisdiction to look back three years, which would reach the due date and allow Borenstein to recover her overpayment.
The Second Circuit sided with Borenstein but examined the Tax Court decision and explained why it disagreed with that decision. It described the Tax Court’s basis for the decision as follows:
[T]he Tax Court determined that the meaning of the flush language of 26 U.S.C. § 6512(b)(3) is unambiguous, relying heavily on the canon of statutory construction known as the “rule of the last antecedent” to find that “(with extensions)” modifies only “due date.” However, that canon “is not an absolute and can assuredly be overcome by other indicia of meaning.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Here, it does not yield a clear answer.
What the Tax Court found clear, the Second Circuit did not:
While the Tax Court determined that “(with extensions)” modifies the noun “due date,” it is at least as plausible that “(with extensions)” modifies the phrase “third year after the due date,” thereby extending the third year. Accordingly, because the flush language of 26 U.S.C. § 6512(b)(3) supports more than one interpretation, we “consult legislative history and other tools of statutory construction to discern Congress’s meaning.”
Once it determined it could look at legislative history, the Second Circuit determined that in amending IRC 6213(b)(3) after Lundy, Congress was trying to create a path for taxpayers to have a three-year lookback period in Tax Court in order to obtain their refund. Congress did not like the fact that a taxpayer had been cut off from obtaining a refund just because the IRS had sent a notice of deficiency prior to the end of three years from the original due date. Cutting off taxpayers who received a notice of deficiency created disparate treatment among taxpayers who were similarly situated. Given the Congressional goal in amending the statute, it makes the most sense to read the statute in the way proposed by Ms. Borenstein. Of course, the Second Circuit needed to throw in a maxim that supported its conclusion and in doing so gave some good language to taxpayers for future cases:
Our conclusion is supported by “the longstanding canon of construction that where ‘the words [of a tax statute] are doubtful, the doubt must be resolved against the government and in favor of the taxpayer,’” a principle of which “we are particularly mindful.” Exxon Mobil Corp. & Affiliated Cos. v. Comm’r of Internal Revenue, 689 F.3d 191, 199‐200 (2d Cir. 2012) (quoting United States v. Merriam, 263 U.S. 179, 188 (1923)). As Borenstein notes, the Tax Court’s interpretation creates a six‐month “black hole” into which her refund disappears, a result that unreasonably harms the taxpayer and is not required by the statutory language.
Moreover, the interpretation we adopt is consistent with the language of 26 U.S.C. § 6511(b)(2)(A), which provides for a look‐back period “equal to 3 years plus the period of any extension of time for filing the return.” 26 U.S.C. § 6511(b)(2)(A) (emphasis added). In view of our obligation to resolve doubtful language in tax statutes against the government and in favor of the taxpayer, we conclude that “(with extensions)” has the same effect as does the similar language that existed in § 6511(b)(2)(A) at the time of § 6512(b)(3)’s amendment‐‐that is, the language expand.
The Second Circuit opinion makes sense to me. I think it achieves the intent of Congress in “fixing” the statute after Lundy. It also avoids what seems like an absurd result the IRS interpretation achieves by avoiding the six month black hole or donut hole. Taxpayers should file their returns on time. If they do not file on time, they can suffer significant consequences including the total loss of their refund if they wait too long. Taxpayers, however, should receive three years within which to file their late returns and still receive a refund whether or not the IRS issues a notice of deficiency.