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Rev. Rul. 58-563 1958-2 C.B. 892

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Revenue Ruling 58-563

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Headnote

A timely filed claim for refund of amounts erroneously paid as manufacturers excise tax is not rendered invalid because the written consents of ultimate purchasers, required by the statute and regulations, were filed after the expiration of the statutory period of limitation.

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ISSUE

Advice has been requested whether a claim for refund is considered to be filed within the statutory period of limitation under the circumstances described below.

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FACTS

A manufacturer sold certain articles which he, at the time of sale, considered to be subject to the manufacturers excise tax. After the tax had been reported and paid to the Government, the manufacturer discovered that the articles were not subject to the tax. To recover the erroneously paid tax, he then filed a Form 843, Claim for Refund, within the statutory period of limitation, with the District Director of Internal Revenue for the district in which the tax was paid. The written consents of the ultimate purchasers were not filed with the claim, but were submitted at a date subsequent to the expiration of the statutory period of limitation.

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LAW AND ANALYSIS

Section 6511(a) of the Internal Revenue Code of 1954, as amended by the Technical Amendments Act of 1958, Public Law 85-866, provides that a claim for credit or refund of an overpayment of any tax imposed by the Code in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within three years from the time the return was filed or two years from the time the tax was paid, whichever of these periods expires the later or, if no return was filed by the taxpayer, within two years from the time the tax was paid. Under the provisions of section 6416(a) of the Code, no credit or refund of any overpayment of the manufacturers excise taxes, with certain exceptions not here material, shall be allowed unless the person who paid the tax establishes, under regulations prescribed by the Secretary of the Treasury or his delegate, that he (1) has not included the tax in the price of the article with respect to which it was imposed or has not collected the amount of the tax from the vendee; (2) has repaid the amount of the tax to the ultimate purchaser of the article; or (3) has filed with the Secretary of the Treasury or his delegate the written consent of such ultimate purchaser to the allowance of the credit or refund. Section 316.204(c) of Regulations 46, made applicable to the 1954 Code by Treasury Decision 6091, C.B. 1954-2, 47, provides, in part, that a claim for refund must be supported by a statement satisfactorily explaining the reason for claiming the credit or refund and, in cases where the written consent of the ultimate purchaser to the allowance of the credit or refund is necessary, such written consent of the ultimate purchaser must accompany the statement filed with the credit or refund claim. The provisions of section 6416 of the Code relate to certain evidence which, under the circumstances, is required as a condition precedent to the allowance of a claim. These provisions have no relation to the timely filing of a claim. While section 316.204(c) of the regulations does provide that written consents of ultimate purchasers must accompany the statement filed with a claim, this does not mean that the written consents must be attached to or submitted with the claim or that failure to do so renders the claim faulty so far as timely filing is concerned. Like any other evidence necessary to support a claim, written consents of ultimate purchasers may be filed with the claim or subsequent thereto.

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HOLDING

Accordingly, it is held that the date on which the written consents of ultimate purchasers are received in the office of the District Director of Internal Revenue has no bearing on the question of whether the claim to which they relate was timely filed. Therefore, in the instant case, the claim is considered to have been filed within the statutory period of limitation although the consents of ultimate purchasers were filed subsequent thereto. The conclusion reached in this Revenue Ruling is equally applicable to similar claims for credit or refund of manufacturers excise taxes paid under the provisions of the Internal Revenue Code of 1939.