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UKP Holdings Inc. v. U.S.

Form 1139, Communications With IRS Not Informal Refund Request Due to Carryback Attempt

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MEMORANDUM & ORDER

*1 Plaintiff UKP Holdings, Inc. (UKP), an investment holding company, seeks a tax refund of $3,237,075 on its 2005 taxes, based on its attempt to carry back its 2008 capital losses to a prior tax year. UKP and the Government filed cross-motions for summary judgment. See Plaintiff Mem. in Supp. of Mot. for Summ. J. (“Plaintiff Mem.”) (ECF No. 31); Gov’t Mem. in Supp. of Mot. for Summ. J. (“Gov’t Mem.”) (ECF No. 35-1). The parties agree that UKP failed to timely file a formal tax refund claim. See 26 U.S.C. §7422(a) (formal claim typically a jurisdictional requirement). They disagree as to whether UKP filed a valid informal refund claim. See United States v. Kales, 314 U.S. 186, 194 (1941). UKP asserts that the Form 1139 (“Corporation Application for Tentative Refund”) that it submitted to the Internal Revenue Service (IRS), coupled with communications with IRS personnel, all of which requested a carryback of UKP’s 2008 losses back to 2007, constitute a valid informal refund claim. The Government asserts that UKP’s interactions with the IRS do not amount to a valid informal refund claim, because UKP failed to request a refund for the proper tax year, 2005. See 26 U.S.C. §6551 (D)(2)(a). We agree with the Government that UKP failed to file a valid informal*2

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