SECTION 4. PROCEDURE

— FILING A SECTION 2053 PROTECTIVE CLAIM FOR REFUND

.01 Time period for filing a protective claim for refund . A section 2053 protective claim for refund must be filed before the expiration of the period of limitation prescribed in section 6511(a) for the filing of a claim for refund. Section 6511(a) provides, in relevant part, that a claim for refund shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Only if a protective claim for refund was timely filed may the Internal Revenue Service (Service) refund overpaid estate taxes in those situations where the amount deductible under § 20.2053–1 is not established until after the expiration of the period of limitation. See §§ 6511(b) and 6514(a). .02 Generally applicable regulatory re- quirements for a claim for refund . Under § 301.6402–2 of the Procedure and Administration Regulations, a claim for refund must set forth, in a written declaration that is executed under penalties of perjury, each ground upon which a refund is claimed and facts sufficient to apprise the Commissioner of the exact basis of the claim. The method under this revenue pro

cedure for satisfying these requirements with respect to a section 2053 protective claim for refund requires that the protective claim for refund identify and describe in detail the claim or expense for which a deduction may be claimed under section 2053 of the Code and otherwise comply with the procedures in this section.

.03 Who can file a protective claim for refund . A protective claim for refund must be accompanied by documentary evidence, including certified copies of the letters testamentary, letters of administration, or other similar evidence, to establish the legal authority of a fiduciary or other person to file and pursue a protective claim for refund on behalf of the estate of a decedent. See § 301.6402–2(e) of the Procedure and Administration Regulations. In the estate tax context, proof of legal authority typically is established at the time of filing the Federal Estate (and Generation-Skipping Transfer) Tax Return (Form 706). Accordingly, if the fiduciary or other person filing the protective claim for refund on behalf of a decedent’s estate is the same fiduciary or other person who filed the decedent’s Form 706, the protective claim for refund need only include a statement affirming that the fiduciary or other person filing the protective claim for refund also filed the Form 706 and that such fiduciary or other person is still acting in a representative capacity on behalf of the estate. If the fiduciary or other person filing the protective claim for refund on behalf of a decedent’s estate is not the same fiduciary or other person who filed the decedent’s Form 706, the protective claim for refund must be accompanied by the necessary documentary evidence establishing proof of legal authority. See section 5.04 of this revenue procedure for guidance on the authority of a transferee or other person to represent the estate in pursuing a section 2053 claim for refund.

.04 Manner of filing a section 2053 pro- tective claim for refund .

(1) Methods of filing . To be properly filed under this revenue procedure, section 2053 protective claims for refund that are filed for decedents dying on or after January 1, 2012, must be filed using any method described in paragraph (a) or (b). For those section 2053 protective claims for refund filed for decedents dying after October 19, 2009, and before January 1, 2012, the section 2053 protective claims

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.06 Period after filing the section 2053 protective claim for refund .

(1) Initial processing of section 2053 claim for refund by the Service . Although the Service generally will not engage in a substantive review of a section 2053 protective claim for refund until the amount of the section 2053 claim or expense has been established, when a section 2053 protective claim for refund is received by the Service, the Service may reject the claim if it appears that one or more preliminary procedural requirements for a valid claim for refund have not been satisfied. For example, the Service may reject a claim that (a) is not timely filed by a fiduciary or other person having legal authority to file a claim for refund on behalf of the estate, (b) does not include a properly executed penalty of perjury statement, or (c) does not adequately describe a claim or expense that, if substantiated at a later time, would support a deduction under section 2053. For those section 2053 protective claims for refund that are not initially rejected by the Service, the Service will acknowledge in written correspondence that the claim has been received. Note, however, that the Service’s written acknowledgement that the claim has been received does not constitute a determination that the preliminary procedural requirements for a valid protective claim for refund have been satisfied. Accordingly, upon consideration of the claim once the amount of the section 2053 claim or expense has been established, the Service nevertheless may determine that one or more procedural requirements are not satisfied and the claim for refund then may be denied.

(2) Contacting the Service when no communication received . Although a timely-filed section 2053 protective claim for refund will be timely filed even if the Service does not acknowledge its receipt and/or process the protective claim, the fiduciary or other person filing the form on behalf of the estate promptly should contact the Service at (866) 699–4083 (or other appropriate number) to inquire into the Service’s receipt and processing of that protective claim for refund if the estate does not receive from the Service the written acknowledgement of receipt described in section 4.06(1) of this revenue procedure within 180 days of filing a section 2053 protective claim for refund on a Schedule PC attached to the Form 706,

ing filed or were previously filed and the approximate date on which each was filed.

.05 Identification of the claim or ex- pense .

(1) General rule . In order for a section 2053 protective claim for refund to be properly filed under this revenue procedure, the outstanding claim or expense that forms the basis of a potential deduction under section 2053 must be clearly identified so that the Service has notice of each claim or expense for which a deduction under section 2053 will be claimed. In addition, as provided in § 20.2053–1(d)(5), proper identification of the claim or expense must include an explanation of the reasons and contingencies delaying the actual payment to be made in satisfaction of the claim or expense. Finally, except as provided in section 4.05(2) of this revenue procedure, claims or expenses related to but separate from a particular section 2053 claim or expense must be separately identified. The use of vague or broad language that does not describe a specific claim or expense that would be deductible under section 2053 does not provide clear identification of a section 2053 claim or expense for purposes of this revenue procedure.

(2) Related ancillary expenses . A section 2053 claim or expense that has been adequately identified in a protective claim for refund (in accordance with this section) will be deemed to include, without the need for any further identification, certain related and ancillary expenses relating to resolving, defending, or satisfying the identified claim or expense as well as certain expenses relating to pursuing the claim for refund for the identified claim or expense. For instance, attorneys’ fees, court costs, appraisal fees, and accounting fees, may be considered as part of the claim for refund to which it relates, without the need for separate identification of those related administration or litigation expenses. Note, however, that although no separate identification for certain related and ancillary expenses is required under the procedures in this revenue procedure, this procedure shall not be construed to concede that the expenses are deductible under section 2053 in all events. A claim or expense that is the subject of a section 2053 claim for refund must meet the substantive requirements of section 2053 and the corresponding regulations in order to be deductible

and the amount of the deduction is subject to any applicable limitations.

(3) Claims against the estate involv- ing contested matters . To satisfy the requirements of this section, each section 2053 protective claim for refund involving a contested claim against the estate must notify the Service of the contested matter and the potential liability of the estate. Identification of all of the following facts, as applicable, generally will be sufficient to appropriately identify a claim against the estate involving a contested matter: the name or names of the claimant(s), the basis of the claim or other description of the subject matter of the contested matter, the extent or amount of the liability claimed, and a brief statement reporting the status of the contested matter at the time the protective claim for refund is filed with the Service. For a contested matter that is being litigated, attaching a copy of the relevant pleadings and making reference thereto on the section 2053 protective claim for refund generally will be sufficient to identify appropriately the claim.

(4) Claims or expenses for which de- ductions under § 20.2053–1(d)(4) or § 20.2053–4(b) or (c) are claimed on Form 706 . Subject to applicable limitations, an estate may preserve the estate’s right to claim a refund based on the amount of any section 2053 claim or expense that is in addition to the amount claimed as a deduction for that claim or expense under § 20.2053–1(d)(4) or § 20.2053–4(b) or (c) on Form 706, if the additional amount might not be paid or might not meet the requirements of § 20.2053–1(d)(4) until after the expiration of the period of limitation prescribed in section 6511(a) for the filing of a claim for refund. To be properly filed under this revenue procedure, a protective claim for refund that is based upon the potential deductibility of such an additional amount must satisfy all of the procedural, identification, and other requirements of this revenue procedure, as applicable. In addition, however, the estate must disclose the amount of the deduction already claimed on Form 706 for the subject claim or expense and must reference the regulatory provision under which the deduction was claimed in order to identify properly the section 2053 claim or expense on a protective claim for refund.

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executed under penalty of perjury, within the time period described in section 5.02 of this revenue procedure, by the fiduciary or other person having legal authority to file and pursue the claim for refund. The notification generally should describe the relevant facts that support, and provide evidence to substantiate, a deduction under section 2053 and should claim a refund of the overpayment of tax based on the deduction under section 2053 and the resulting recomputation of the estate tax liability.

.02 Time period for providing notifica- tion for consideration of a section 2053 protective claim for refund .

(1) General rule . Under § 20.2053–1(d)(5)(i), a fiduciary or other person having legal authority to pursue the claim for refund must notify the Service within a reasonable period that the reason or contingency delaying the actual payment of the section 2053 claim or expense has been resolved and/or that the amount deductible under § 20.2053–1 has been established. For purposes of this revenue procedure, this requirement is satisfied when the fiduciary or other person having legal authority to pursue the claim for refund on behalf of the estate notifies the Service within 90 days after the date the claim or expense is paid or 90 days after the date on which the amount of the claim or expense becomes certain and is no longer subject to any contingency, whichever occurs later. When the notification to the Service by the fiduciary or other person occurs after the expiration of that 90-day period, the fiduciary or other person should provide an explanation sufficient to establish that there is reasonable cause for the delay. The methods by which a fiduciary or other person having legal authority to file and pursue the claim for refund must notify the Service under this revenue procedure are described in section 5.03 of this revenue procedure.

(2) Multiple or recurring payments . For a section 2053 claim or expense involving multiple payments or a series of recurring payments, the payment of which is necessary to claim a deduction based on that claim or expense (such as a contingent obligation described in § 20.2053–4(d)(6)(ii) of the Estate Tax Regulations), the 90-day period described in section 5.02(1) of this revenue proce

or within 60 days of filing a section 2053 protective claim for refund on a Form 843. A certified mail receipt or other evidence of delivery to the Service is not sufficient to ensure and confirm the Service’s receipt and processing of the protective claim for purposes of this revenue procedure. See section 4.06(3) of this revenue procedure regarding the possible consequences of not contacting the Service within 30 days after the expiration of these periods.

(3) Opportunity to cure an inadequately identified section 2053 protective claim for refund . A section 2053 protective claim for refund must satisfy the timely-filing requirement set forth in section 4.01 of this revenue procedure. The failure of a section 2053 protective claim for refund to satisfy certain other preliminary procedural requirements for a valid claim for refund, including the penalty of perjury statement requirement set forth in section 4.02 of this revenue procedure, may be cured before the expiration of the period of limitation prescribed in section 6511(a). However, the failure of a section 2053 protective claim for refund to satisfy the identification requirement set forth in section 4.05 of this revenue procedure may be cured, as further described below, after the expiration of the period of limitation prescribed in section 6511(a), as long as the section 2053 protective claim for refund as originally filed was timely and properly executed under the penalty of perjury. To cure the section 2053 protective claim for refund, the fiduciary or other person must adequately identify the section 2053 claim or expense in accordance with section 4.05 of this revenue procedure by submitting a corrected (and signed) protective claim for refund before the expiration of the period of limitation prescribed in section 6511(a) or within 45 days after the date of the Service’s notice, if any, to the fiduciary or other person of the defect, whichever occurs later. If the Service fails to provide the written acknowledgement of receipt described in section 4.06(1) of this revenue procedure and the fiduciary or other person who filed the section 2053 protective claim for refund fails to contact the Service within 30 days after the applicable time period described in section 4.06(2) of this revenue procedure to confirm the Service’s receipt and processing of that section 2053 protective claim for refund, the fiduciary or other person will not have the oppor

tunity to cure the inadequate identification of the section 2053 protective claim for refund after the expiration of the period of limitation prescribed in section 6511(a).

(4) Effect of section 2053 protective claim for refund on examination of Form 706 . When a fiduciary or other person having authority to file a Form 706 on behalf of an estate also files a section 2053 protective claim for refund on behalf of the estate, generally the Service will not suspend the substantive review and examination of the Form 706 and will not delay issuing a closing letter on the basis that a protective claim for refund has been filed in that estate. Instead, the Form 706 will be processed and examined by the Service in accordance with the regular processing and examination procedures followed for estate tax returns.