SECTION 5. LIMITATIONS

PERIOD FOR CLAIM FOR CREDIT OR REFUND BY SURVIVING SPOUSE

.01 Generally, under § 6511(a), a taxpayer’s claim for credit or refund of an overpayment of tax must be filed within three years from the date of filing the tax return, or within two years from the date of payment of the tax, whichever period expires later. Accordingly, to obtain a credit or refund of an overpayment of tax by reason of a portability election made pursuant to a grant of relief under this revenue procedure, the surviving spouse (or the executor of the estate of the surviving spouse) of the decedent must file a

claim for credit or refund of tax before the expiration of the limitations period in § 6511(a).

.02 Example (1) Facts (a) Predeceasing Spouse (S1) dies on January 1, 2011, survived by Surviving Spouse (S2). The assets includible in S1’s gross estate consist of cash on deposit in bank accounts held jointly with S2 with rights of survivorship in the amount of $2,000,000. S1 made no taxable gifts during life. S1’s executor is not required to file an estate tax return under § 6018(a), and does not file such a return.

(b) S2 dies on January 14, 2011. S2’s taxable estate is $8,000,000 and S2 made no taxable gifts during life. S2’s executor files a Form 706 on behalf of S2’s estate on October 14, 2011, and includes payment of the estate tax on the $3,000,000 in excess of S2’s applicable exclusion amount.

(c) Pursuant to this revenue procedure, S1’s executor files a Form 706 on behalf of S1’s estate on November 1, 2014, reporting a DSUE amount of $5,000,000. In 2015, the Service (i) determines that S1’s estate has met the requirements for a grant of relief under this revenue procedure and is deemed to have made a valid portability election, (ii) accepts S1’s return with no changes, and (iii) issues an estate tax closing letter to S1’s estate.

(2) Application of limitations period for credit or refund . To recover the estate tax paid, S2’s executor must file a claim for credit or refund of tax by October 14, 2014, even though a Form 706 to elect portability has not been filed on behalf of S1’s estate at that time. Such a claim filed in anticipation of the filing of the Form 706 by S1’s executor will be considered a protective claim for credit or refund of tax. Accordingly, as long as the claim of S2’s estate for credit or refund of tax was filed by October 14, 2014, the Service can consider and process that claim for credit or refund of tax once S1’s estate is considered to have elected portability pursuant to this revenue procedure.