Math Error and Limited Taxpayer Remedies

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Last year I gave two talks about math errors, one for an ABA Tax Section meeting and the other for the annual conference the IRS sponsors for tax clinics. I also worked on a refresh of the math error subchapter in Saltzman and Book, IRS Practice & Procedure.

In doing this work last year I noted a few points that I think practitioners should consider.


As readers may know, when there is an adjustment that fits within the definition of a “mathematical or clerical error” IRS can assess without issuing a 90-day letter.  The statute requires the IRS to explain the error.

Taxpayers have the right to request an abatement within 60-days; if they do request an abatement, IRS is required statutorily to honor the request. If IRS believes that the item that gave rise to the original mathematical or clerical error is incorrect, it is required to issue a 90-day letter, thus subjecting the adjustment to the pre-assessment deficiency procedures.

What happens if IRS fails to honor a taxpayer request to abate the assessment? Or if the IRS fails to explain the math error assessment? These appear to be more than academic questions based on what I am hearing from practitioners and sources within IRS. And, with math error assessments growing exponentially following the COVID benefits distributed through the tax system (and likely to grow more given the Inflation Reduction Act’s adding categories of math error adjustments tied to the slate of new green credits for car purchases and home improvements) this will be a major issue for years to come.

Well, it depends.  If the IRS fails to abate and issue a notice of deficiency, it appears that the Tax Court does not have deficiency jurisdiction. Nor does it generally have the statutory power to enjoin the IRS from collecting or compel the IRS to issue a 90-day letter. 

How about in district court? Some courts have held that while the Anti Injunction Act and Declaratory Judgment Act do not deprive the court of jurisdiction, a taxpayer must still prove there is no adequate remedy. That is a problem, as some courts view the refund procedures as a sufficient remedy at law, with courts essentially stating that an IRS violation of the statute triggers no immediate right to remedy in the absence of full payment. See, for example, Deacon v. United States, 71A AFTR2d 93-4718, (CD CA 1990).

On the other hand, if IRS proceeds to take collection action as a result of the mistake, the Tax Court has held in a couple of nonprecedential CDP cases that the mistake can invalidate an assessment. See, for example  Robinson v Commissioner, Docket No. 6446-19L (Jan. 10, 2022) (Judge Gustafson Bench Opinion). While this can be helpful, the need to use the CDP procedures provides no relief for taxpayers if the IRS does not issue a notice of intent to levy or file a NFTL. With offsets not triggering CDP rights, and the most common form of enforced collection, IRS essentially gets a free pass.

Some may say this is unfair. And it is.

What about procedural due process and the constitution? Well courts have maintained that there is no procedural due process right to a predeprivation hearing when it comes to taxes, leaving taxpayers complaining about math error and the constitution to hold an empty bag. See, Polsky v Werfel  844 F.3d 170 (3rd Cir. 2016).

And while I and others (like Nina Olson) have argued that procedural due process doctrine when it comes to taxes needs a refresh, for now it faces some steep headwinds, though the right court might treat the constitutional issues differently for a math error stemming from an adjusted refundable credit as contrasted with say a math error triggering a positive tax liability. And perhaps a challenge that focuses on inadequate notice rather than hearing may have more traction.

For readers who want more on this, with my colleagues Anna Gooch and Marilyn Ames I will be updating even further the IRS Practice & Procedure with more discussion of the above, as well as some possible ideas for challenging errors.

In the meantime Congress could help by expanding the Tax Court’s jurisdiction to allow for power to enjoin when the IRS makes a math error mistake. Or to have jurisdiction if the IRS fails to abate within a defined time of a taxpayer request.

For now, lots of taxpayers seem to be sitting on a right with a very limited remedy.

Avatar photo About Leslie Book

Professor Book is a Professor of Law at the Villanova University Charles Widger School of Law.


  1. Bob Kamman says

    Here is an example from the Covid era. This taxpayer qualified for Head of Household and completed the return correctly, showing the name of the child who is claimed by the noncustodial parent, but IRS changed the filing status to single and reduced the refund by $2,345.

    4/7/21 Return filed

    8/9/21 CP12 notice that filing status changed because “we believe there’s a miscalculation on your 2020 Form 1040, which affects the following area of your return: Filing Status.”

    8/28/21 Dispute sent to Austin Service Center by certified mail.

    4/21/22 Letter 2644C from Kansas City Service Center: “Although we try to respond quickly, we often need additional time for research. We can’t provide a complete response at this time because: We need more time to provide you with a complete response to your inquiry. . . . Please allow an additional 60 days for us to obtain the information we need and let yhou know what action we’re taking.”

    5/30/22: Notice CP21B from Fresno Service Center: “Based on the information you provided, we changed your 2020 Form 1040 to correct your filing status to head of household.” (Taxpayer received $2,345 plus interest.)

  2. Steve Odem says

    For further background on this see for example:
    Les’ excellent TIGTA Report Makes (Incomplete) Case For Expanded Math Error Authority

    NTA Blog: Math Error Notices: What You Need to Know and What the IRS Needs to Do to Improve Notices

    What to do with math error notice letters from the IRS, Journal of Accountancy Jan, 2018

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