U.S. Code » Title 26 » Subtitle Subtitle A— Income Taxes › Chapter CHAPTER 1— NORMAL TAXES AND SURTAXES › Subchapter Subchapter Q— Readjustment of Tax Between Years and Special Limitations › Part PART II— MITIGATION OF EFFECT OF LIMITATIONS AND OTHER PROVISIONS

26 U.S.C. § 1311

Correction of error

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(a) General rule

If a determination (as defined in section 1313) is described in one or more of the paragraphs of section 1312 and, on the date of the determination, correction of the effect of the error referred to in the applicable paragraph of section 1312 is prevented by the operation of any law or rule of law, other than this part and other than section 7122 (relating to compromises), then the effect of the error shall be corrected by an adjustment made in the amount and in the manner specified in section 1314.

(b) Conditions necessary for adjustment(1) Maintenance of an inconsistent positionExcept in cases described in paragraphs (3) (B) and (4) of section 1312, an adjustment shall be made under this part only if—(A) in case the amount of the adjustment would be credited or refunded in the same manner as an overpayment under section 1314, there is adopted in the determination a position maintained by the Secretary, or(B) in case the amount of the adjustment would be assessed and collected in the same manner as a deficiency under section 1314, there is adopted in the determination a position maintained by the taxpayer with respect to whom the determination is made,and the position maintained by the Secretary in the case described in subparagraph (A) or maintained by the taxpayer in the case described in subparagraph (B) is inconsistent with the erroneous inclusion, exclusion, omission, allowance, disallowance, recognition, or nonrecognition, as the case may be.(2) Correction not barred at time of erroneous action(A) Determination described in section 1312(3)(B)

In the case of a determination described in section 1312(3)(B) (relating to certain exclusions from income), adjustment shall be made under this part only if assessment of a deficiency for the taxable year in which the item is includible or against the related taxpayer was not barred, by any law or rule of law, at the time the Secretary first maintained, in a notice of deficiency sent pursuant to section 6212 or before the Tax Court, that the item described in section 1312(3)(B) should be included in the gross income of the taxpayer for the taxable year to which the determination relates.

(B) Determination described in section 1312(4)

In the case of a determination described in section 1312(4) (relating to disallowance of certain deductions and credits), adjustment shall be made under this part only if credit or refund of the overpayment attributable to the deduction or credit described in such section which should have been allowed to the taxpayer or related taxpayer was not barred, by any law or rule of law, at the time the taxpayer first maintained before the Secretary or before the Tax Court, in writing, that he was entitled to such deduction or credit for the taxable year to which the determination relates.

(3) Existence of relationship

In case the amount of the adjustment would be assessed and collected in the same manner as a deficiency (except for cases described in section 1312(3)(B)), the adjustment shall not be made with respect to a related taxpayer unless he stands in such relationship to the taxpayer at the time the latter first maintains the inconsistent position in a return, claim for refund, or petition (or amended petition) to the Tax Court for the taxable year with respect to which the determination is made, or if such position is not so maintained, then at the time of the determination.

(Aug. 16, 1954, ch. 736, 68A Stat. 337; Pub. L. 94–455, title XIX, §§ 1901(a)(142), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1788, 1834.)Editorial NotesAmendments

1976—Subsec. (b)(2). Pub. L. 94–455, §§ 1901(a)(142), 1906(b)(13)(A), struck out “or his delegate” after “Secretary” and “of the United States” after “Tax Court” wherever appearing.

Subsec. (b)(3). Pub. L. 94–455, § 1901(a)(142), struck out “of the United States” after “Tax Court”.

Statutory Notes and Related SubsidiariesEffective Date of 1976 Amendment

Amendment by section 1901(a)(142) of Pub. L. 94–455 effective for taxable years beginning after Dec. 31, 1976, see section 1901(d) of Pub. L. 94–455, set out as a note under section 2 of this title.

Notes of Decisions
Cited in 51 cases (1 in the last 5 years), 1958–2024 · leading case: David A. Koss Freya B. Koss v. United States, 69 F.3d 705 (3rd Cir. 1995).
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David A. Koss Freya B. Koss v. United States, 69 F.3d 705 (3rd Cir. 1995). · cites it 2× “26 U.S.C. § 1311 (a). Section 1313 defines “determination” to include “a decision by the Tax Court or a judgment, decree, or other order by any court of competent jurisdiction, which has become final.”
Samuel M. Longiotti Betty C. Longiotti v. United States, 819 F.2d 65 (4th Cir. 1987). · cites it 2× “§ 1312 (l)-(7); and 3) depending on which circumstance of adjustment is found, either an inconsistent position must be maintained by the party against whom mitigation will operate, 26 U.S.C. § 1311 (b)(1), or the correction of the error must not have been barred at the time the…”
TLI, Inc. v. United States, 100 F.3d 424 (5th Cir. 1996). · cites it 2× “26 U.S.C. § 1311 (a); The circumstances under which the adjustment provided in section 1311 is authorized are as follows: (4) Double disallowance of a deduction or credit.”
Gilbert Ashoff, Marjorie Ashoff, Friends of the Russian River, California Corp. & Miles T. Crail v. City of Ukiah, 130 F.3d 409 (9th Cir. 1997). “26 U.S.C. § 1311 (b)(1)(C). Moreover, the citizen suit provision of CWA specifically incorporates orders issued by a state, 26 U.”
Michael G. O'Brien v. United States, 766 F.2d 1038 (7th Cir. 1985). “26 U.S.C. § 1311 . With respect to the second requirement listed above, it also must be demonstrated that the taxpayer falls within one of the seven express categories or “circumstances of adjustment” listed in Section 1312.”
Hartzog v. United States, 6 Cl. Ct. 835 (Ct. Cl. 1984). · cites it 3× “OPINION YOCK, Judge: This case comes before the Court on the defendant’s motion to dismiss filed on the grounds that the Court lacks subject matter jurisdiction over the plaintiffs’ claim, since the claim was not timely filed and the mitigation provisions of 26 U.S.C. § 1311 are…”
Nw. Env't Advocates, a Non-Profit Oregon Corp. & Nina Bell v. City of Portland, 11 F.3d 900 (9th Cir. 1993). “In the legislative history, the Senate Committee expressly stated that “[i]n addition to violations of section 301(a) [ 26 U.S.C. § 1311 , Effluent Limitations] citizens ace granted authority to bring enforcement actions for violations of .”
Last v. United States, 37 Fed. Cl. 1 (Fed. Cl. 1996). · cites it 2× “§ 1312 (1) — (7); and (3) depending on which circumstance of adjustment is found, either an inconsistent position must have been maintained by the party against whom the mitigation will operate, 26 U.S.C. § 1311 (b)(1), or the correction of the error must not have been barred at…”
Blatt v. United States, 830 F. Supp. 882 (W.D.N.C. 1993). · cites it 2× “§ and 3) depending on which circumstance of adjustment is found, either an inconsistent position must be maintained by the party against whom mitigation will operate, 26 U.S.C. § 1311 (b)(1), or the correction of the error must not have been barred at the time the party for whom…”
Kent Homes, Inc. v. Comm'r of Internal Revenue, Alton K. Blosser v. Comm'r of Internal Revenue, 455 F.2d 316 (10th Cir. 1972). · cites it 2× “The sole question for our determination is whether the Tax Court ruled correctly when it applied the mitigation sections of the Internal Revenue Code, 26 U.S.C. § 1311 et seq., the effect of which was to open a year otherwise closed by the running of the six year statute of…”
Comm'r of Internal Revenue v. O. Liquidating Corp., 292 F.2d 225 (3rd Cir. 1961). “of the 1954 Code, 26 U.S.C.A. § 1311 et seq.), by directing the deletion of this item from the 1953 return' — execute the dictum of the Tax Court as it were.”
Ora R. Hall & Edna Ione Hall, His Wife George E. Hall & Mary Ann McFall v. United States, 975 F.2d 722 (10th Cir. 1992). · cites it 2× “26 U.S.C. § 1311 (a) provides as follows: (a) General rule.”
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— 26 U.S.C. § 1311(b) — 1 case
Kent Homes, Inc. v. Comm'r of Internal Revenue, Alton K. Blosser v. Comm'r of Internal Revenue, 455 F.2d 316 (10th Cir. 1972). “The sole question for our determination is whether the Tax Court ruled correctly when it applied the mitigation sections of the Internal Revenue Code, 26 U.S.C. § 1311 et seq., the effect of which was to open a year otherwise closed by the running of the six year statute of…”
— 26 U.S.C. § 1311(b)(1)(A) — 1 case
Great Falls Nat'l Bank v. United States, 388 F. Supp. 577 (D. Mont. 1975).
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