Internal Revenue Service
Revenue Ruling

TaxLinks.com   sm

 Rev. Rul. 60-58

1960-1 C.B. 638

IRS Headnote

With respect to the so-called `collected' excise taxes, where a `taxpayer' has paid the tax to a collecting agency which has filed a return and  at the same time paid the tax to the Government, the `taxpayer' has three years from the time the return was filed in which to file a claim for refund of any overpayment of that tax.

Full Text

Rev. Rul. 60-58

Advice has been requested concerning the period of limitation which applies to a claim for refund of an overpayment of excise tax, where the claim is filed by a shipper who paid the tax on the transportation of property to a transportation company which filed a return and paid the tax to the Government at the time the return was filed. The tax on the transportation of property was imposed by section 4271 of the Internal Revenue Code of 1954, prior to its repeal by the Tax Rate Extension Act of 1958, Public Law 85-475, C.B. 1958-3, 73 effective August 1, 1958.

Section 6402 of the Code provides the general rule that in the case of any overpayment, the Secretary of the Treasury or his delegate, within the applicable period of limitations, may credit the amount of such overpayment, including any interest allowed thereon, against any liability in respect of an internal revenue tax on the part of the person who made the overpayment and shall refund any balance to such person. Section 301.6402-2(a) of the Regulations on Procedure and Administration provides that credits or refunds of overpayments may not be allowed or made after the expiration of the statutory period of limitation properly applicable unless, before the expiration of such period, a claim therefor has been filed by the taxpayer.

Section 6511(a) of the Code, as amended by the Technical Amendments Act of 1958, Public Law 85-866, C.B. 1958-3, 254, provides that a claim for credit or refund of an overpayment of any internal revenue tax 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 such periods expires the later, or if no return is filed by the taxpayer, within two years from the time the tax was paid.

Section 301.6511(a)-1(a) of the regulations, as amended by Treasury Decision 6425, C.B. 1959-2, 384, provides as follows:

In the case of any tax (other than a tax payable by stamp)-

(1) If a return is filed, a claim for credit or refund of an overpayment must be filed by the taxpayer within three years from the time the return was filed or within two years from the time the tax was paid, whichever of such periods expires the later.

(2) If no return is filed, the claim for credit or refund must be filed by the taxpayer within two years from the the time the tax was paid.

Section 6513 of the Code provides that, for purposes of section 6511 of the Code, any return filed before the last day prescribed for the filing thereof shall be considered as filed on such last day.

The tax imposed upon the amount paid for the transportation of property is one of the so-called `collected' excise taxes, which are imposed upon the person making the payment subject to the tax. Therefore, the `taxpayer' is the person paying for the facilities or services upon which the tax is imposed. Included in the category of `collected' excise taxes are, in addition to the tax on the transportation of property, the taxes on admissions, club dues, communications, transportation of persons, and safe deposit boxes.

Under the provisions of the statute, with respect to the `collected' excise taxes, the taxpayer has a duty to pay the tax, while the person receiving the taxable payment for the facilities or services rendered is required to collect the tax, to file a return, and to remit to the Government the tax thus collected from the taxpayer. Consequently, there is a responsibility on both parties to perform the acts required in such a way as to insure that the Government will timely receive a return and payment of the tax imposed by the Code. Therefore, the return that is required is a return of the tax paid by the taxpayer and collected by the collecting agency for payment over to the Government. In other words, this one return is the only return necessary and is sufficient to satisfy the requirement that a return be filed.

Accordingly, it is held that the three-year period of limitation provided by section 6511 of the Code applies to a claim for refund filed by a `taxpayer' for an overpayment of any `collected' excise tax paid by that taxpayer to a collecting agency which, in turn, has filed a return and at the same time paid the tax to the Government. Therefore, in the instant case, the shipper may file a timely claim for refund of an overpayment of the tax on the transportation of property at any time within three years from the time the return was filed by the transportation company.