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Ezel / IRS Rulings / 201906006
Chief Counsel Advice 201906006 Released February 8, 2019 Advice

Protective refund claims are available for gift tax

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This page covers one taxpayer's ruling from 2019, which can't be cited as precedent. Ezel answers your situation under the current Code and IRS guidance, with citations.

Currency note: this determination was released in 2019
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 considered whether a taxpayer may file a protective refund claim for gift tax. Examination had denied such a claim solely because it related to gift tax. The advice concluded that protective refund claims can apply to gift tax, noting prior Chief Counsel advice, Internal Revenue Manual provisions, and the requirements stated in United States v. Kales. It found no authority excluding gift tax claims and no basis for the denial on that ground alone.

Ruling snapshot

  • Question: May a taxpayer make a protective refund claim for gift tax?
  • Outcome: Advice given that protective gift tax refund claims are permitted.
  • Key authorities: IRC § 6402; United States v. Kales; CCA 200938021; CCA 201411021.

Full text (IRS public release)

ID: CCA_2018120210520320
UILC: 6402.04-00

Number: 201906006
Release Date: 2/8/2019
From:
Sent: Friday, February 08, 2019 10:46:38 AM
To:
Cc:
Bcc:
Subject: RE: Protective Refund Claim - Gift Tax

You asked whether protective refund claims can be made with respect to
gift taxes. Exam recently denied such a claim because it stemmed from
the gift tax. We conclude that protective refund claims can be made with
respect to gift taxes.

You found some materials that involve gift tax and protective refund
claims. Similarly, we found a CCA that involves gift tax and protective
refund claims. See CCA 200938021. There are IRM provisions that
address protective refund claims, see e.g., IRM 21.5.3.4.7.3.1, and case
law that goes beyond what’s in the IRM, see CCA 201411021. In addition,
the requirements for a protective refund claim were set out long ago in
United States v. Kales, 314 U.S. 186 (1941). We have not found anything
that specifically considers whether protective refund claims can be used for
gift taxes and certainly nothing that excludes gift taxes from protective
refund claims.

You note that Exam has not denied or allowed the protective estate tax
refund claim, but denied the gift tax claim for no reason other than that it
relates to gift tax. We don’t see that there was a basis for having done so.

If you would like to discuss this further, please contact me.

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