
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 26USC7422]

 
                     TITLE 26--INTERNAL REVENUE CODE
 
                Subtitle F--Procedure and Administration
 
                    CHAPTER 76--JUDICIAL PROCEEDINGS
 
        Subchapter B--Proceedings by Taxpayers and Third Parties
 
Sec. 7422. Civil actions for refund


(a) No suit prior to filing claim for refund

    No suit or proceeding shall be maintained in any court for the 
recovery of any internal revenue tax alleged to have been erroneously or 
illegally assessed or collected, or of any penalty claimed to have been 
collected without authority, or of any sum alleged to have been 
excessive or in any manner wrongfully collected, until a claim for 
refund or credit has been duly filed with the Secretary, according to 
the provisions of law in that regard, and the regulations of the 
Secretary established in pursuance thereof.

(b) Protest or duress

    Such suit or proceeding may be maintained whether or not such tax, 
penalty, or sum has been paid under protest or duress.

(c) Suits against collection officer a bar

    A suit against any officer or employee of the United States (or 
former officer or employee) or his personal representative for the 
recovery of any internal revenue tax alleged to have been erroneously or 
illegally assessed or collected, or of any penalty claimed to have been 
collected without authority, or of any sum alleged to have been 
excessive or in any manner wrongfully collected shall be treated as if 
the United States had been a party to such suit in applying the doctrine 
of res judicata in all suits in respect of any internal revenue tax, and 
in all proceedings in the Tax Court and on review of decisions of the 
Tax Court.

(d) Credit treated as payment

    The credit of an overpayment of any tax in satisfaction of any tax 
liability shall, for the purpose of any suit for refund of such tax 
liability so satisfied, be deemed to be a payment in respect of such tax 
liability at the time such credit is allowed.

(e) Stay of proceedings

    If the Secretary prior to the hearing of a suit brought by a 
taxpayer in a district court or the United States Court of Federal 
Claims for the recovery of any income tax, estate tax, gift tax, or tax 
imposed by chapter 41, 42, 43, or 44 (or any penalty relating to such 
taxes) mails to the taxpayer a notice that a deficiency has been 
determined in respect of the tax which is the subject matter of 
taxpayer's suit, the proceedings in taxpayer's suit shall be stayed 
during the period of time in which the taxpayer may file a petition with 
the Tax Court for a redetermination of the asserted deficiency, and for 
60 days thereafter. If the taxpayer files a petition with the Tax Court, 
the district court or the United States Court of Federal Claims, as the 
case may be, shall lose jurisdiction of taxpayer's suit to whatever 
extent jurisdiction is acquired by the Tax Court of the subject matter 
of taxpayer's suit for refund. If the taxpayer does not file a petition 
with the Tax Court for a redetermination of the asserted deficiency, the 
United States may counterclaim in the taxpayer's suit, or intervene in 
the event of a suit as described in subsection (c) (relating to suits 
against officers or employees of the United States), within the period 
of the stay of proceedings notwithstanding that the time for such 
pleading may have otherwise expired. The taxpayer shall have the burden 
of proof with respect to the issues raised by such counterclaim or 
intervention of the United States except as to the issue of whether the 
taxpayer has been guilty of fraud with intent to evade tax. This 
subsection shall not apply to a suit by a taxpayer which, prior to the 
date of enactment of this title, is commenced, instituted, or pending in 
a district court or the United States Court of Federal Claims for the 
recovery of any income tax, estate tax, or gift tax (or any penalty 
relating to such taxes).

(f) Limitation on right of action for refund

                          (1) General rule

        A suit or proceeding referred to in subsection (a) may be 
    maintained only against the United States and not against any 
    officer or employee of the United States (or former officer or 
    employee) or his personal representative. Such suit or proceeding 
    may be maintained against the United States notwithstanding the 
    provisions of section 2502 of title 28 of the United States Code 
    (relating to aliens' privilege to sue) and notwithstanding the 
    provisions of section 1502 of such title 28 (relating to certain 
    treaty cases).

                 (2) Misjoinder and change of venue

        If a suit or proceeding brought in a United States district 
    court against an officer or employee of the United States (or former 
    officer or employee) or his personal representative is improperly 
    brought solely by virtue of paragraph (1), the court shall order, 
    upon such terms as are just, that the pleadings be amended to 
    substitute the United States as a party for such officer or employee 
    as of the time such action commenced, upon proper service of process 
    on the United States. Such suit or proceeding shall upon request by 
    the United States be transferred to the district or division where 
    it should have been brought if such action initially had been 
    brought against the United States.

(g) Special rules for certain excise taxes imposed by chapter 42 or 43

                     (1) Right to bring actions

        (A) In general

            With respect to any taxable event, payment of the full 
        amount of the first tier tax shall constitute sufficient payment 
        in order to maintain an action under this section with respect 
        to the second tier tax.

        (B) Definitions

            For purposes of subparagraph (A), the terms ``taxable 
        event'', ``first tier tax'', and ``second tier tax'' have the 
        respective meanings given to such terms by section 4963.

                  (2) Limitation on suit for refund

        No suit may be maintained under this section for the credit or 
    refund of any tax imposed under section 4941, 4942, 4943, 4944, 
    4945, 4951, 4952, 4955, 4958, 4971, or 4975 with respect to any act 
    (or failure to act) giving rise to liability for tax under such 
    sections, unless no other suit has been maintained for credit or 
    refund of, and no petition has been filed in the Tax Court with 
    respect to a deficiency in, any other tax imposed by such sections 
    with respect to such act (or failure to act).

                  (3) Final determination of issues

        For purposes of this section, any suit for the credit or refund 
    of any tax imposed under section 4941, 4942, 4943, 4944, 4945, 4951, 
    4952, 4955, 4958, 4971, or 4975 with respect to any act (or failure 
    to act) giving rise to liability for tax under such sections, shall 
    constitute a suit to determine all questions with respect to any 
    other tax imposed with respect to such act (or failure to act) under 
    such sections, and failure by the parties to such suit to bring any 
    such question before the Court shall constitute a bar to such 
    question.

(h) Special rule for actions with respect to partnership items

    No action may be brought for a refund attributable to partnership 
items (as defined in section 6231(a)(3)) except as provided in section 
6228(b) or section 6230(c).

(i) Special rule for actions with respect to tax shelter promoter and 
        understatement penalties

    No action or proceeding may be brought in the United States Court of 
Federal Claims for any refund or credit of a penalty imposed by section 
6700 (relating to penalty for promoting abusive tax shelters, etc.) or 
section 6701 (relating to penalties for aiding and abetting 
understatement of tax liability).

(j) Special rule for actions with respect to estates for which an 
        election under section 6166 is made

                           (1) In general

        The district courts of the United States and the United States 
    Court of Federal Claims shall not fail to have jurisdiction over any 
    action brought by the representative of an estate to which this 
    subsection applies to determine the correct amount of the estate tax 
    liability of such estate (or for any refund with respect thereto) 
    solely because the full amount of such liability has not been paid 
    by reason of an election under section 6166 with respect to such 
    estate.

               (2) Estates to which subsection applies

        This subsection shall apply to any estate if, as of the date the 
    action is filed--
            (A) no portion of the installments payable under section 
        6166 have been accelerated;
            (B) all such installments the due date for which is on or 
        before the date the action is filed have been paid;
            (C) there is no case pending in the Tax Court with respect 
        to the tax imposed by section 2001 on the estate and, if a 
        notice of deficiency under section 6212 with respect to such tax 
        has been issued, the time for filing a petition with the Tax 
        Court with respect to such notice has expired; and
            (D) no proceeding for declaratory judgment under section 
        7479 is pending.

        (3) Prohibition on collection of disallowed liability

        If the court redetermines under paragraph (1) the estate tax 
    liability of an estate, no part of such liability which is 
    disallowed by a decision of such court which has become final may be 
    collected by the Secretary, and amounts paid in excess of the 
    installments determined by the court as currently due and payable 
    shall be refunded.

(k) Cross references

            (1) For provisions relating generally to claims for refund 
        or credit, see chapter 65 (relating to abatements, credit, and 
        refund) and chapter 66 (relating to limitations).
            (2) For duty of United States attorneys to defend suits, see 
        section 507 of Title 28 of the United States Code.
            (3) For jurisdiction of United States district courts, see 
        section 1346 of Title 28 of the United States Code.
            (4) For payment by the Treasury of judgments against 
        internal revenue officers or employees, upon certificate of 
        probable cause, see section 2006 of Title 28 of the United 
        States Code.

(Aug. 16, 1954, ch. 736, 68A Stat. 876; Pub. L. 85-866, title I, 
Sec. 78, Sept. 2, 1958, 72 Stat. 1662; Pub. L. 89-713, Sec. 3(a), Nov. 
2, 1966, 80 Stat. 1108; Pub. L. 91-172, title I, Sec. 101(i), (j)(56), 
Dec. 30, 1969, 83 Stat. 525, 532; Pub. L. 92-178, title III, 
Sec. 309(a), Dec. 10, 1971, 85 Stat. 525; Pub. L. 93-406, title II, 
Sec. 1016(a)(26), Sept. 2, 1974, 88 Stat. 931; Pub. L. 94-455, title 
XIII, Sec. 1307(d)(2)(F)(viii), title XVI, Sec. 1605(b)(11), title XIX, 
Sec. 1906(a)(44), (b)(13)(A), Oct. 4, 1976, 90 Stat. 1728, 1755, 1830, 
1834; Pub. L. 96-222, title I, Sec. 108(b)(1)(D)-(F), Apr. 1, 1980, 94 
Stat. 226; Pub. L. 96-223, title I, Sec. 101(f)(1)(J), Apr. 2, 1980, 94 
Stat. 252; Pub. L. 96-596, Sec. 2(c)(2), Dec. 24, 1980, 94 Stat. 3474; 
Pub. L. 97-164, title I, Sec. 151, Apr. 2, 1982, 96 Stat. 46; Pub. L. 
97-248, title IV, Sec. 402(c)(11), Sept. 3, 1982, 96 Stat. 668; Pub. L. 
98-369, div. A, title VII, Sec. 714(g)(1), (p)(2)(H), July 18, 1984, 98 
Stat. 961, 965; Pub. L. 99-514, title XVIII, Sec. 1899A(58), Oct. 22, 
1986, 100 Stat. 2961; Pub. L. 100-203, title X, Sec. 10712(c)(5), Dec. 
22, 1987, 101 Stat. 1330-467; Pub. L. 100-418, title I, 
Sec. 1941(b)(2)(B)(x), Aug. 23, 1988, 102 Stat. 1323; Pub. L. 102-572, 
title IX, Sec. 902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 104-
168, title XIII, Sec. 1311(c)(4), July 30, 1996, 110 Stat. 1478; Pub. L. 
105-206, title III, Sec. 3104(a), July 22, 1998, 112 Stat. 731.)

                       References in Text

    The date of enactment of this title, referred to in subsec. (e), is 
Aug. 16, 1954.


                               Amendments

    1998--Subsecs. (j), (k). Pub. L. 105-206 added subsec. (j) and 
redesignated former subsec. (j) as (k).
    1996--Subsec. (g)(2), (3). Pub. L. 104-168 inserted ``4958,'' after 
``4955,''.
    1992--Subsecs. (e), (i). Pub. L. 102-572 substituted ``United States 
Court of Federal Claims'' for ``United States Claims Court'' wherever 
appearing.
    1988--Subsec. (e). Pub. L. 100-418 substituted ``or 44'' for ``44, 
or 45''.
    1987--Subsec. (g)(2), (3). Pub. L. 100-203 inserted ``4955,'' after 
``4952,''.
    1986--Subsec. (g)(1)(B). Pub. L. 99-514 substituted ``section 4963'' 
for ``section 4962''.
    1984--Subsec. (h). Pub. L. 98-369, Sec. 714(p)(2)(H), substituted 
``section 6231(a)(3)'' for ``section 6131(a)(3)''.
    Subsecs. (i), (j). Pub. L. 98-369, Sec. 714(g)(1), added subsec. (i) 
and redesignated former subsec. (i) as (j).
    1982--Subsec. (e). Pub. L. 97-164 substituted ``United States Claims 
Court'' for ``Court of Claims'' wherever appearing.
    Subsecs. (h), (i). Pub. L. 97-248 added subsec. (h) and redesignated 
former subsec. (h) as (i).
    1980--Subsec. (e). Pub. L. 96-223 inserted reference to chapter 45.
    Subsec. (g). Pub. L. 96-596 substituted in par. (1) provision 
authorizing, with respect to any taxable event, payment of the full 
amount of the first tier tax as constituting sufficient payment in order 
to maintain an action under this section with respect to the second tier 
tax and defining the terms ``taxable event'', ``first tier tax'', and 
``second tier tax'' as having the respective meanings given to such 
terms by section 4962 of this title for provision authorizing, with 
respect to any act or failure to act giving rise to liability under 
sections 4941, 4942, 4943, 4944, 4945, 4951, 4952, 4971, or 4975 of this 
title, payment of the full amount of tax imposed under specified 
subsections of those sections as constituting sufficient payment in 
order to maintain an action under this section with respect to such act 
or failure to act.
    Pub. L. 96-222 substituted in pars. (1) to (3) ``4944, 4945, 4951, 
4952'' for ``4944, 4945'' and in par. (1) ``section 4945(a) (relating to 
initial taxes on taxable expenditures), section 4951(a) (relating to 
initial taxes on self dealing), 4952(a) (relating to initial taxes on 
taxable expenditures)'' for ``section 4945(a) (relating to initial taxes 
on taxable expenditures)'' and ``section 4945(b) (relating to additional 
taxes on taxable expenditures), section 4951(b) (relating to additional 
taxes on self-dealing), 4952(b) (relating to additional taxes on taxable 
expenditures)'' for ``section 4945(b) (relating to additional taxes on 
taxable expenditures)''.
    1976--Subsec. (a). Pub. L. 94-455, Sec. 1906(b)(13)(A), struck out 
``or his delegate'' after ``Secretary''.
    Subsec. (c). Pub. L. 94-455, Sec. 1906(a)(44), struck out 
``instituted after June 15, 1942,'' after ``res judicata in all suits'' 
and ``where the petition to the Tax Court was filed after such date'' 
after ``decisions of the Tax Court''.
    Subsec. (e). Pub. L. 94-455, Secs. 1307(d)(2)(F)(viii), 1605(b)(11), 
1906(b)(13)(A), struck out ``or his delegate'' after ``Secretary'' and 
substituted ``chapter 41, 42,'' for ``chapter 42'' and ``43, or 44'' for 
``or 43''.
    1974--Subsec. (e). Pub. L. 93-406, Sec. 1016(a)(26)(A), substituted 
``chapter 42 or 43'' for ``chapter 42''.
    Subsec. (g). Pub. L. 93-406, Sec. 1016(a)(26)(B)-(F), substituted 
``chapter 42 or 43'' for ``chapter 42'' in heading, substituted ``4945, 
4971, or 4975'' for ``or 4945'', ``section 4945(a) (relating to initial 
taxes on taxable expenditures), 4971(a) (relating to initial tax on 
failure to meet minimum funding standard), 4975(a) (relating to initial 
tax on prohibited transactions)'' for ``section 4945(a) (relating to 
initial taxes on taxable expenditures)'', and ``section 4945(b) 
(relating to additional taxes on taxable expenditures), section 4971(b) 
(relating to additional tax on failure to meet minimum funding 
standard), or section 4975(b) (relating to additional tax on prohibited 
transactions)'' for ``or section 4945(b) (relating to additional taxes 
on taxable expenditures)'' in par. (1), and substituted ``4945, 4971, or 
4975'' for ``or 4945'' in pars. (2) and (3).
    1971--Subsec. (f)(1). Pub. L. 92-178 authorized maintenance of suit 
or proceeding against the United States notwithstanding provisions of 
section 1502 of Title 28 (relating to certain treaty cases).
    1969--Subsec. (e). Pub. L. 91-172, Sec. 101(j)(56), inserted 
reference to chapter 42 taxes.
    Subsecs. (g), (h). Pub. L. 91-172, Sec. 101(i), added subsec. (g) 
and redesignated former subsec. (g) as (h).
    1966--Subsecs. (f), (g). Pub. L. 89-713 added subsec. (f) and 
redesignated former subsec. (f) as (g).
    1958--Subsec. (f)(2). Pub. L. 85-866 struck out ``district'' before 
``attorneys''.


                    Effective Date of 1998 Amendment

    Pub. L. 105-206, title III, Sec. 3104(c), July 22, 1998, 112 Stat. 
732, provided that: ``The amendments made by this section [amending this 
section and section 7479 of this title] shall apply to any claim for 
refund filed after the date of the enactment of this Act [July 22, 
1998].''


                    Effective Date of 1996 Amendment

    Amendment by Pub. L. 104-168 applicable to excess benefit 
transactions occurring on or after Sept. 14, 1995 and not applicable to 
any benefit arising from a transaction pursuant to any written contract 
which was binding on Sept. 13, 1995, and at all times thereafter before 
such transaction occurred, see section 1311(d)(1), (2) of Pub. L. 104-
168, set out as a note under section 4955 of this title.


                    Effective Date of 1992 Amendment

    Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section 
911 of Pub. L. 102-572, set out as a note under section 171 of Title 28, 
Judiciary and Judicial Procedure.


                    Effective Date of 1988 Amendment

    Amendment by Pub. L. 100-418 applicable to crude oil removed from 
the premises on or after Aug. 23, 1988, see section 1941(c) of Pub. L. 
100-418, set out as a note under section 164 of this title.


                    Effective Date of 1987 Amendment

    Amendment by Pub. L. 100-203 applicable to taxable years beginning 
after Dec. 22, 1987, see section 10712(d) of Pub. L. 100-203, set out as 
an Effective Date note under section 4955 of this title.


                    Effective Date of 1984 Amendment

    Amendment by section 714(g)(1) of Pub. L. 98-369 applicable to any 
claim for refund or credit filed after July 18, 1984, see section 
714(g)(4) of Pub. L. 98-369, set out as an Effective Date note under 
section 1509 of Title 28, Judiciary and Judicial Procedure.
    Amendment by section 714(p)(2)(H) of Pub. L. 98-369 effective as if 
included in the provision of the Tax Equity and Fiscal Responsibility 
Act of 1982, Pub. L. 97-248, to which such amendment relates, see 
section 715 of Pub. L. 98-369, set out as a note under section 31 of 
this title.


                    Effective Date of 1982 Amendment

    Amendment by Pub. L. 97-248 applicable to partnership taxable years 
beginning after Sept. 3, 1982, with provision for the applicability of 
the amendment to any partnership taxable year ending after Sept. 3, 
1982, if the partnership, each partner, and each indirect partner 
requests such application and the Secretary of the Treasury or his 
delegate consents to such application, see section 407(a)(1), (3) of 
Pub. L. 97-248, set out as an Effective Date note under section 6221 of 
this title.
    Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 
of Pub. L. 97-164, set out as a note under section 171 of Title 28, 
Judiciary and Judicial Procedure.


                    Effective Date of 1980 Amendments

    For effective date of amendment by Pub. L. 96-596 with respect to 
any first tier tax and to any second tier tax, see section 2(d) of Pub. 
L. 96-596, set out as an Effective Date note under section 4961 of this 
title.
    Amendment by Pub. L. 96-223 applicable to periods after Feb. 29, 
1980, see section 101(i) of Pub. L. 96-223, set out as a note under 
section 6161 of this title.
    Amendment by Pub. L. 96-222 effective as if included in the 
provisions of the Black Lung Benefits Revenue Act of 1977, Pub. L. 95-
227, see section 108(b)(4) of Pub. L. 96-222, set out as a note under 
section 192 of this title.


                    Effective Date of 1976 Amendment

    Amendment by section 1307(d)(2)(F)(viii) of Pub. L. 94-455 effective 
on and after Oct. 4, 1976, see section 1307(e)(6) of Pub. L. 94-455, set 
out as a note under section 501 of this title.
    For effective date of amendment by section 1605(b)(11) of Pub. L. 
94-455, see section 1608(d) of Pub. L. 94-455, set out as a note under 
section 856 of this title.
    Amendment by section 1906(a)(44), (b)(13)(A) of Pub. L. 94-455 
effective on first day of first month which begins more than 90 days 
after Oct. 4, 1976, see section 1906(d)(1) of Pub. L. 94-455, set out as 
a note under section 6013 of this title.


                    Effective Date of 1974 Amendment

    Amendment by Pub. L. 93-406 applicable, except as otherwise provided 
in section 1017(c) through (i) of Pub. L. 93-406, for plan years 
beginning after Sept. 2, 1974, and in the case of plans in existence on 
Jan. 1, 1974, amendment by Pub. L. 93-406 applicable for plan years 
beginning after Dec. 31, 1975, see section 1017 of Pub. L. 93-406, set 
out as an Effective Date; Transitional Rules note under section 410 of 
this title.


                    Effective Date of 1971 Amendment

    Section 309(b) of Pub. L. 92-178 provided that: ``The amendment made 
by subsection (a) [amending this section] shall apply to suits or 
proceedings which are instituted after January 30, 1967.''


                    Effective Date of 1969 Amendment

    Amendment by Pub. L. 91-172 effective Jan. 1, 1970, see section 
101(k)(1) of Pub. L. 91-172, set out as an Effective Date note under 
section 4940 of this title.


                    Effective Date of 1966 Amendment

    Section 3(d) of Pub. L. 89-713 provided that: ``The amendments made 
by subsections (a) and (b) [amending this section and section 2502 of 
Title 28, Judiciary and Judicial Procedure] shall apply to suits brought 
against officers, employees, or personal representatives referred to 
therein which are instituted 90 days or more after the date of the 
enactment of this Act [Nov. 2, 1966]. The amendment made by subsection 
(c) [amending section 7482 of this title] shall apply to all decisions 
of the Tax Court entered after the date of enactment of this Act.''


                    Effective Date of 1958 Amendment

    Amendment by Pub. L. 85-866 as effective Aug. 17, 1954, see section 
1(c)(2) of Pub. L. 85-866, set out as a note under section 165 of this 
title.


           Plan Amendments Not Required Until January 1, 1989

    For provisions directing that if any amendments made by subtitle A 
or subtitle C of title XI [Secs. 1101-1147 and 1171-1177] or title XVIII 
[Secs. 1800-1899A] of Pub. L. 99-514 require an amendment to any plan, 
such plan amendment shall not be required to be made before the first 
plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. 
L. 99-514, as amended, set out as a note under section 401 of this 
title.

                  Section Referred to in Other Sections

    This section is referred to in sections 4961, 6228, 6234, 6532, 7426 
of this title; title 28 section 2502.
