Ninth Circuit Holds that Providing a Delinquent Return to an IRS Agent on Request Isn’t Filing the Return by ROBERT HORWITZ
Posted by Hochman Salkin Toscher Perez P.C. 
Posted on Thursday, April 06, 2023
When a taxpayer who has not filed a tax return is contacted by an IRS agent, the taxpayer will be requested to give the delinquent return to the agent. Internal Revenue Manual 4.12.1.7.2.1 (10-05-2010) states that the IRS agent is to “[a]dvise the taxpayer to deliver the returns promptly to the examiner along with a written statement explaining why they did not timely comply with filing requirements.” If you have a client in this situation, advise her it is best to not to listen to this particular request by the IRS agent. Instead, the client should first either e-file the delinquent returns or send them by certified mail to the appropriate IRS service center and then provide the IRS agent with a copy of the duly filed return. The reason is that, according to the Ninth Circuit, a taxpayer who complies with an IRS agent’s request for a delinquent return has not legally filed a return with the IRS unless and until the IRS agent has sent it to the appropriate service center. Thus, the statute of limitations for examination of that return will continue to remain open indefinitely. This is what the taxpayer learned in Seaview Trading, LLC v. Commissioner, ___ F.4th ___ 2021 WL 2442606 (9th Cir., March 10, 2023).
