How to Amend an Old Tax Return

[Dogmatique]

Yes, I know we don't do third party questions, but I'd be grateful if we could ignore that bit. This is for a dear friend.


Disabled wife was sponsored by husband and is LPR. Divorced around 10 years ago; no spousal support or alimony ordered in decree. Husband did pay an amount each month for about a year, more or less following I-864 requirements. Husband stopped support, remarried, and claimed the monies as alimony. Wife also filed, and (naively) listed the payments as alimony. Not being able to work, and not being eligible for disability, wife could not afford to pay the owed taxes.

Fast forward. Wife remarries and knowing about the tax debt, called 'em up and confirmed the amount owed. Wife and husband fine with this, and just let them deduct the amount. Fine.

Except that wife discovered that the money was not actually alimony or spousal support according to IRS rules. Wife now needs to amend the original return, and "recapture" the amount IRS took.

Main confusion is whether or not she's still within the SOL to file - IRS says she has two years after the refund was taken....but the return in question was filed a few years before that.

So I suppose the question is, "Which SOL applies?" Does the clock start ticking after it was filed, or is it when the payment is made? Everything I can find is saying that it's the date of the payment, not the date of the actual filing.

Help please?

[Welfarelvr]

Technically, friend is not making an amended return but an administrative claim for refund. See IRC 6511(a). [Two years after payment.]

The date of payment is considered the date the IRS credits the overpayment against the deficiency. (By case law. In the court of claims: Kingston Products Corp. V. United States, 368 F.2d 281 (Ct. Cl. 1966))

[Dogmatique]

I suppose the next question is how she actually files.
Or rather, what she files.

Thanks so much, Welfarelvr.

[Welfarelvr]

I suppose the next question is how she actually files.
Or rather, what she files.

Thanks so much, Welfarelvr.

They would file a 1040X and whatever forms needed to go with it. Include a detailed statement explaining why the claim is within the statute and why the changes were made. If going to court is ever required the taxpayer is limited to litigating only the issues raised in the claim.

Read Treas. Reg 301.6402-2(b)(1).

[Dogmatique]

Thanks muchly.