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Financial Disability for All

34 Pages Posted: 30 Nov 2012 Last revised: 26 Feb 2013

Keith Fogg

Villanova University - School of Law

Rachel E. Zuraw

US Court of Appeals - Fourth Circuit

Date Written: November 1, 2012

Abstract

The Internal Revenue Code has four discreet sections that allow late filing of claims and other documents under the circumstances described in those sections. The IRS has promulgated a procedural regulation that allows it to permit late elections under prescribed circumstances. Neither the Code sections nor the Regulation cover all of the circumstances in which taxpayers have a good excuse for missing a time frame. The current provisions have developed in an ad hoc manner. More ad hoc development of this area is possible as equitable tolling litigation seeks to open up time frames under the Code despite the efforts of the IRS to argue the tax code is exceptional.

Rather than continue down the path of ad hoc allowance of late claims and certain other late actions, this Article recommends the creation of a statute that would apply to all situations. The recommendation draws from the current provisions allowing late action and from principles developed in equitable tolling litigation. It proposes a transparent system under which the IRS would make a determination whether the late action qualified and that determination would be subject to judicial review under an abuse of discretion standard.

Keywords: tax, statute of limitations, equitable tolling, refund

Suggested Citation

Fogg, Keith and Zuraw, Rachel E., Financial Disability for All (November 1, 2012). Villanova Law/Public Policy Research Paper No. 2013-3009; Catholic University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2182772 or http://dx.doi.org/10.2139/ssrn.2182772

Keith Fogg (Contact Author)

Villanova University - School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

Rachel E. Zuraw

US Court of Appeals - Fourth Circuit

United States

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