§1311 — Title 26 Internal Revenue Code | U.S. Code

Summary

When a determination listed in section 1312 shows an error but some law (other than this part or section 7122) stops fixing it on the date of that determination, the error must be fixed by an adjustment in the amount and way set out in section 1314. Except for the special cases in 1312(3)(B) and 1312(4), an adjustment can only be made if the adjustment would be a credit or refund and the determination adopts the Secretary’s position, or if the adjustment would be treated like a tax deficiency and the determination adopts the taxpayer’s position. For items under 1312(3)(B) (certain income exclusions), an adjustment is allowed only if assessing a deficiency for that year was not barred when the Secretary first said in a notice under section 6212 or in Tax Court that the item should be included in income. For items under 1312(4) (certain denied deductions or credits), an adjustment is allowed only if the refund or credit was not barred when the taxpayer first told the Secretary or Tax Court in writing they were entitled to it. If an adjustment is treated as a deficiency (except 1312(3)(B)), it won’t apply to a related taxpayer unless that relation existed when the original taxpayer first took the inconsistent position on a return, refund claim, or Tax Court petition (or if no such position was taken, at the time of the determination).

Title 26, §1311

Internal Revenue Code — Source: USLM XML via OLRC

(a)If a determination (as defined in section 1313) is described in one or more of the paragraphs of section 1312 and, on the date of the determination, correction of the effect of the error referred to in the applicable paragraph of section 1312 is prevented by the operation of any law or rule of law, other than this part and other than section 7122 (relating to compromises), then the effect of the error shall be corrected by an adjustment made in the amount and in the manner specified in section 1314.

(b)(1)Except in cases described in paragraphs (3) (B) and (4) of section 1312, an adjustment shall be made under this part only if—

(A)in case the amount of the adjustment would be credited or refunded in the same manner as an overpayment under section 1314, there is adopted in the determination a position maintained by the Secretary, or

(B)in case the amount of the adjustment would be assessed and collected in the same manner as a deficiency under section 1314, there is adopted in the determination a position maintained by the taxpayer with respect to whom the determination is made,

(2)(A)In the case of a determination described in section 1312(3)(B) (relating to certain exclusions from income), adjustment shall be made under this part only if assessment of a deficiency for the taxable year in which the item is includible or against the related taxpayer was not barred, by any law or rule of law, at the time the Secretary first maintained, in a notice of deficiency sent pursuant to section 6212 or before the Tax Court, that the item described in section 1312(3)(B) should be included in the gross income of the taxpayer for the taxable year to which the determination relates.

(B)In the case of a determination described in section 1312(4) (relating to disallowance of certain deductions and credits), adjustment shall be made under this part only if credit or refund of the overpayment attributable to the deduction or credit described in such section which should have been allowed to the taxpayer or related taxpayer was not barred, by any law or rule of law, at the time the taxpayer first maintained before the Secretary or before the Tax Court, in writing, that he was entitled to such deduction or credit for the taxable year to which the determination relates.

(3)In case the amount of the adjustment would be assessed and collected in the same manner as a deficiency (except for cases described in section 1312(3)(B)), the adjustment shall not be made with respect to a related taxpayer unless he stands in such relationship to the taxpayer at the time the latter first maintains the inconsistent position in a return, claim for refund, or petition (or amended petition) to the Tax Court for the taxable year with respect to which the determination is made, or if such position is not so maintained, then at the time of the determination.

Notes & Related Subsidiaries

Editorial Notes

Amendments

1976—Subsec. (b)(2). Pub. L. 94–455, §§ 1901(a)(142), 1906(b)(13)(A), struck out “or his delegate” after “Secretary” and “of the United States” after “Tax Court” wherever appearing. Subsec. (b)(3). Pub. L. 94–455, § 1901(a)(142), struck out “of the United States” after “Tax Court”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1976 AmendmentAmendment by section 1901(a)(142) of Pub. L. 94–455 effective for taxable years beginning after Dec. 31, 1976, see section 1901(d) of Pub. L. 94–455, set out as a note under section 2 of this title.

§1311 Correction of Error