26 U.S.C. § 7422 : US Code - Section 7422: Civil actions for refund

Search 26 U.S.C. § 7422 : US Code - Section 7422: Civil actions for refund

    (a) No suit prior to filing claim for refund
      No suit or proceeding shall be maintained in any court for the
    recovery of any internal revenue tax alleged to have been
    erroneously or illegally assessed or collected, or of any penalty
    claimed to have been collected without authority, or of any sum
    alleged to have been excessive or in any manner wrongfully
    collected, until a claim for refund or credit has been duly filed
    with the Secretary, according to the provisions of law in that
    regard, and the regulations of the Secretary established in
    pursuance thereof.
    (b) Protest or duress
      Such suit or proceeding may be maintained whether or not such
    tax, penalty, or sum has been paid under protest or duress.
    (c) Suits against collection officer a bar
      A suit against any officer or employee of the United States (or
    former officer or employee) or his personal representative for the
    recovery of any internal revenue tax alleged to have been
    erroneously or illegally assessed or collected, or of any penalty
    claimed to have been collected without authority, or of any sum
    alleged to have been excessive or in any manner wrongfully
    collected shall be treated as if the United States had been a party
    to such suit in applying the doctrine of res judicata in all suits
    in respect of any internal revenue tax, and in all proceedings in
    the Tax Court and on review of decisions of the Tax Court.
    (d) Credit treated as payment
      The credit of an overpayment of any tax in satisfaction of any
    tax liability shall, for the purpose of any suit for refund of such
    tax liability so satisfied, be deemed to be a payment in respect of
    such tax liability at the time such credit is allowed.
    (e) Stay of proceedings
      If the Secretary prior to the hearing of a suit brought by a
    taxpayer in a district court or the United States Court of Federal
    Claims for the recovery of any income tax, estate tax, gift tax, or
    tax imposed by chapter 41, 42, 43, or 44 (or any penalty relating
    to such taxes) mails to the taxpayer a notice that a deficiency has
    been determined in respect of the tax which is the subject matter
    of taxpayer's suit, the proceedings in taxpayer's suit shall be
    stayed during the period of time in which the taxpayer may file a
    petition with the Tax Court for a redetermination of the asserted
    deficiency, and for 60 days thereafter. If the taxpayer files a
    petition with the Tax Court, the district court or the United
    States Court of Federal Claims, as the case may be, shall lose
    jurisdiction of taxpayer's suit to whatever extent jurisdiction is
    acquired by the Tax Court of the subject matter of taxpayer's suit
    for refund. If the taxpayer does not file a petition with the Tax
    Court for a redetermination of the asserted deficiency, the United
    States may counterclaim in the taxpayer's suit, or intervene in the
    event of a suit as described in subsection (c) (relating to suits
    against officers or employees of the United States), within the
    period of the stay of proceedings notwithstanding that the time for
    such pleading may have otherwise expired. The taxpayer shall have
    the burden of proof with respect to the issues raised by such
    counterclaim or intervention of the United States except as to the
    issue of whether the taxpayer has been guilty of fraud with intent
    to evade tax. This subsection shall not apply to a suit by a
    taxpayer which, prior to the date of enactment of this title, is
    commenced, instituted, or pending in a district court or the United
    States Court of Federal Claims for the recovery of any income tax,
    estate tax, or gift tax (or any penalty relating to such taxes).
    (f) Limitation on right of action for refund
      (1) General rule
        A suit or proceeding referred to in subsection (a) may be
      maintained only against the United States and not against any
      officer or employee of the United States (or former officer or
      employee) or his personal representative. Such suit or proceeding
      may be maintained against the United States notwithstanding the
      provisions of section 2502 of title 28 of the United States Code
      (relating to aliens' privilege to sue) and notwithstanding the
      provisions of section 1502 of such title 28 (relating to certain
      treaty cases).
      (2) Misjoinder and change of venue
        If a suit or proceeding brought in a United States district
      court against an officer or employee of the United States (or
      former officer or employee) or his personal representative is
      improperly brought solely by virtue of paragraph (1), the court
      shall order, upon such terms as are just, that the pleadings be
      amended to substitute the United States as a party for such
      officer or employee as of the time such action commenced, upon
      proper service of process on the United States. Such suit or
      proceeding shall upon request by the United States be transferred
      to the district or division where it should have been brought if
      such action initially had been brought against the United States.
    (g) Special rules for certain excise taxes imposed by chapter 42 or
      43
      (1) Right to bring actions
        (A) In general
          With respect to any taxable event, payment of the full amount
        of the first tier tax shall constitute sufficient payment in
        order to maintain an action under this section with respect to
        the second tier tax.
        (B) Definitions
          For purposes of subparagraph (A), the terms "taxable event",
        "first tier tax", and "second tier tax" have the respective
        meanings given to such terms by section 4963.
      (2) Limitation on suit for refund
        No suit may be maintained under this section for the credit or
      refund of any tax imposed under section 4941, 4942, 4943, 4944,
      4945, 4951, 4952, 4955, 4958, 4971, or 4975 with respect to any
      act (or failure to act) giving rise to liability for tax under
      such sections, unless no other suit has been maintained for
      credit or refund of, and no petition has been filed in the Tax
      Court with respect to a deficiency in, any other tax imposed by
      such sections with respect to such act (or failure to act).
      (3) Final determination of issues
        For purposes of this section, any suit for the credit or refund
      of any tax imposed under section 4941, 4942, 4943, 4944, 4945,
      4951, 4952, 4955, 4958, 4971, or 4975 with respect to any act (or
      failure to act) giving rise to liability for tax under such
      sections, shall constitute a suit to determine all questions with
      respect to any other tax imposed with respect to such act (or
      failure to act) under such sections, and failure by the parties
      to such suit to bring any such question before the Court shall
      constitute a bar to such question.
    (h) Special rule for actions with respect to partnership items
      No action may be brought for a refund attributable to partnership
    items (as defined in section 6231(a)(3)) except as provided in
    section 6228(b) or section 6230(c).
    (i) Special rule for actions with respect to tax shelter promoter
      and understatement penalties
      No action or proceeding may be brought in the United States Court
    of Federal Claims for any refund or credit of a penalty imposed by
    section 6700 (relating to penalty for promoting abusive tax
    shelters, etc.) or section 6701 (relating to penalties for aiding
    and abetting understatement of tax liability).
    (j) Special rule for actions with respect to estates for which an
      election under section 6166 is made
      (1) In general
        The district courts of the United States and the United States
      Court of Federal Claims shall not fail to have jurisdiction over
      any action brought by the representative of an estate to which
      this subsection applies to determine the correct amount of the
      estate tax liability of such estate (or for any refund with
      respect thereto) solely because the full amount of such liability
      has not been paid by reason of an election under section 6166
      with respect to such estate.
      (2) Estates to which subsection applies
        This subsection shall apply to any estate if, as of the date
      the action is filed - 
          (A) no portion of the installments payable under section 6166
        have been accelerated;
          (B) all such installments the due date for which is on or
        before the date the action is filed have been paid;
          (C) there is no case pending in the Tax Court with respect to
        the tax imposed by section 2001 on the estate and, if a notice
        of deficiency under section 6212 with respect to such tax has
        been issued, the time for filing a petition with the Tax Court
        with respect to such notice has expired; and
          (D) no proceeding for declaratory judgment under section 7479
        is pending.
      (3) Prohibition on collection of disallowed liability
        If the court redetermines under paragraph (1) the estate tax
      liability of an estate, no part of such liability which is
      disallowed by a decision of such court which has become final may
      be collected by the Secretary, and amounts paid in excess of the
      installments determined by the court as currently due and payable
      shall be refunded.
    (k) Cross references
          (1) For provisions relating generally to claims for refund or
        credit, see chapter 65 (relating to abatements, credit, and
        refund) and chapter 66 (relating to limitations).
          (2) For duty of United States attorneys to defend suits, see
        section 507 of Title 28 of the United States Code.
          (3) For jurisdiction of United States district courts, see
        section 1346 of Title 28 of the United States Code.
          (4) For payment by the Treasury of judgments against internal
        revenue officers or employees, upon certificate of probable
        cause, see section 2006 of Title 28 of the United States Code.