Ezel / IRS Rulings / 1138045
Chief Counsel Advice 1138045 Released September 23, 2011 Advice

CCA 1138045: IRS may abate excessive unpaid liability but cannot refund a paid amount

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This page covers one taxpayer's ruling from 2011, which can't be cited as precedent. Ask about your situation and see what the current Code and IRS guidance say, with citations.

Currency note: this determination was released in 2011
Statutory amendments, regulation changes, court decisions, or later IRS guidance may have changed the analysis since then. Treat this page as historical context, not current tax advice. Verify current law before relying on any specific rule, threshold, or position mentioned here.
Not precedent. Under 26 U.S.C. § 6110(k)(3), this written determination may not be used or cited as precedent. It resolved one taxpayer's situation on its specific facts, and identifying details were redacted by the IRS before release. The official IRS release (linked on this page as a PDF) is the authoritative source.
About this page: The plain-English summary and ruling snapshot below were written by Ezel based on the official IRS release. The full text is the IRS's own document.
View official IRS release (PDF)

Plain-English summary

Chief Counsel Advice addressed whether the IRS could reduce an unpaid liability after a Tax Court case. The advice stated that the IRS retains authority under IRC § 6404(a)(1) to abate an unpaid liability to the extent it is excessive. If the liability has already been paid, however, the IRS cannot issue a refund because IRC § 6512 bars a refund or credit for a year before the Tax Court when the Court determined that there was no overpayment. The advice also stated that the final Tax Court decision could not be amended.

Ruling snapshot

  • Question: Can the IRS abate an excessive unpaid liability or refund a liability already paid after a Tax Court decision?
  • Outcome: advice given
  • Key authorities: IRC §§ 6404(a)(1) and 6512; Edelson v. Commissioner, 829 F.2d 828, 832 n.4 (9th Cir. 1987)

Full text (IRS public release)

ID: CCA_2011083111503733 Number: 201138045
Release Date: 9/23/2011
Office: ----------------------------
UILC: 6404.00-00

From: --------------------
Sent: Wednesday, August 31, 2011 11:50:43 AM
To: ---------------------
Cc: --------------------------------------
Subject: Request for Advice, ----------------------

Hi -------- -

The following represents a summary of our phone conversation yesterday:

The Internal Revenue Service retains the authority in this case to abate any unpaid
liability to the extent that it is excessive. Section 6404(a)(1); see also Edelson v.
Commissioner, 829 F.2d 828, 832 FN4 (9th Cir. 1987) (indicating that abatement may
be appropriate under section 6404(a) in circumstances similar to the present case).

To the extent that payment has been made on the liability, however, no refund can be
issued. Section 6512 prohibits a refund or credit for a year before the Tax Court unless
the Court determines an overpayment, and in this case, the decision specifically
determined that there was no overpayment. Additionally, nothing can be done to
amend the final Tax Court decision.

Please feel free to contact me if you have any additional questions or concerns.

Thanks!

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