SECTION 5. PROCEDURE

— NOTIFICATION FOR CONSIDERATION OF A SECTION 2053 PROTECTIVE CLAIM FOR REFUND

.01 In general . The Service will refund overpaid estate tax if the Service determines there is an overpayment of tax in connection with a timely-filed section 2053 protective claim for refund, even though the claim or expense that is the subject of the claim for refund does not become deductible under section 2053 until after the expiration of the period of limitation prescribed in section 6511(a) for the filing of a claim for credit or refund. In accordance with Notice 2009–84, 2009–44 I.R.B. 592, in determining whether there is an overpayment of tax based on a timely-filed section 2053 protective claim for refund that becomes ready for consideration after the expiration of the period of limitation on assessment prescribed in section 6501, generally the Service will limit its review of the Form 706 to the deduction under section 2053 that was the subject of the protective claim. When the section 2053 claim or expense that was the subject of the timely-filed section 2053 protective claim for refund meets the requirements for deductibility under § 20.2053–1, a taxpayer must provide a notification to the Service that the claim for refund is ready for consideration as described in section 5.03 of this revenue procedure, and such notification must be

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der § 20.2053–1 is established and the section 2053 protective claim for refund is ready for consideration, one or more persons that are transferees of the probate or nonprobate estate may establish under applicable local law that person’s legal authority to pursue the claim for refund on behalf of the estate. For purposes of this provision, any transferee or other person having established legal authority to pursue the claim for refund shall be deemed to have the authority to pursue the claim for refund on behalf of all such transferees or other persons. The transferee or other person must attach to the notification for consideration of a section 2053 protective claim for refund (filed as described in section 5.03 of this revenue procedure) documentary evidence that substantiates that person’s assertion of authority to pursue the claim. Depending on applicable local law, the evidence requirement may be satisfied by providing one or more of the following: a certified copy of the final accounting of the estate showing the source of the initial tax payment; relevant testamentary instruments of the decedent such as a will or trust instrument; an affidavit executed under penalties of perjury by the executor or other appropriate party conferring the authority or the right to pursue the refund to one or more transferees or other persons; and such other evidence as may be requested by the Service. The Service will pay the refund of tax to the person or individual who paid the tax, as required by section 6402(a) and subject to regulations under that section.

.05 Consequences of a section 2053 claim for refund on the marital and char- itable deduction . Because of the application of section 20.2053–1(d)(5)(ii), neither the charitable deduction nor the marital deduction is reduced by the amount of any claim or expense that may be the subject of a section 2053 protective claim for refund until the claim or expense has met the requirements for a deduction under section 2053. The computation of the amount to be refunded under section 2053, as required on Form 843 or a supplemental Form 706, should identify any necessary adjustment to the marital and charitable deductions claimed by the estate, as well as any other arithmetic adjustments that result from the allowance of the deduction.

dure will begin with regard to the entire amount of the claim or expense on the date of the last and final payment. Thus, the fiduciary or other person having legal authority to file and pursue the claim for refund may notify the Service within 90 days after the date the liability for the claim or expense is fully satisfied, regardless of the amount of time over which the earlier, partial payments were made. Notwithstanding the preceding sentence, however, the fiduciary or other person having legal authority to file and pursue the claim for refund may notify the Service in accordance with section 5.02(1) of this revenue procedure, but not more often than annually (except in the case of a final payment) of all payments made since the last notification for consideration, if any, in partial satisfaction of a liability for a section 2053 claim or expense, and may thereby claim a partial refund attributable to such payment(s).

.03 Manner of notifying the Service for consideration of a section 2053 claim for refund .

(1) Methods of filing . To meet the notification requirements under this revenue procedure, whether with regard to the entire claim or expense or to partial payments as made, a notification for consideration of a section 2053 protective claim for refund that is to be filed for a decedent dying on or after January 1, 2012, must be filed using any method described in paragraph (a) or (b). For a notification for consideration of a section 2053 protective claim for refund that is to be filed for a decedent dying after October 19, 2009, and before January 1, 2012, a notification for consideration of a section 2053 protective claim for refund must be filed using the method described in paragraph (b). A notification for consideration of a section 2053 protective claim for refund additionally must meet the applicable requirements in section 5.01 and 5.02 of this revenue procedure.

(a) Supplemental Form 706 . A notification for consideration of a section 2053 protective claim for refund may be filed by filing, at the same location where the section 2053 protective claim for refund was previously filed, an updated (and signed) Form 706, including each schedule affected by the allowance of the deduction(s) whose amount has been established and including an updated Schedule PC for each

section 2053 claim or expense that has become deductible. The notation “Supplemental Information — Notification for Consideration of Section 2053 Protective Claim(s) for Refund filed on [DATE OF PROTECTIVE CLAIM]” must be entered across the top of page 1 of Form 706. In addition, a copy of the originally-filed section 2053 protective claim(s) for refund (filed as described in section 4.04(1) of this revenue procedure) that identifies the section 2053 claims or expenses that now have become deductible must be attached to the Form 706.

(b) Form 843 . A notification for consideration of a section 2053 protective claim for refund may be filed by filing, at the same location where the section 2053 protective claim for refund was previously filed, one or more updated (and signed) Forms 843 with the notation “Notification for Consideration of Section 2053 Protective Claim for Refund filed on [DATE OF PROTECTIVE CLAIM]” entered across the top of page 1 of the form(s). A copy of the originally-filed section 2053 protective claim(s) for refund (filed as described in section 4.04(1) of this revenue procedure) that identifies the section 2053 claims or expenses that now have become deductible must be attached to the Form(s) 843.

(2) Separate notifications for consider- ation for each section 2053 claim or ex- pense . To be properly filed under this revenue procedure, a separate notification for consideration of a section 2053 protective claim for refund must be filed as described in section 5.03(1) of this revenue procedure for each section 2053 claim or expense for which a section 2053 protective claim for refund was filed. Specifically, an updated Form 706 may include more than one updated Schedule PC. In addition, a notification for consideration of a section 2053 protective claim for refund must not include any claim not based on a deduction under section 2053. Each notification for consideration of a section 2053 protective claim for refund should indicate whether other notifications for consideration are being filed contemporaneously or were previously filed and the approximate date of each such filing.

.04 Authority of a transferee or other person to represent the estate in pursuit of a claim for refund . If a fiduciary is no longer acting on behalf of the estate at the time that the amount deductible un

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(Passthroughs & Special Industries). For further information regarding this revenue procedure, contact Karlene M. Lesho at (202) 622–3090 (not a toll free call).