You have a limited window to ask the IRS for your money back. Miss it, and no court ruling can help you. A protective claim keeps that window open.
The IRS enforces strict statutes of limitations on refund requests: generally 3 years from filing or 2 years from payment, whichever is later. If a court case (like Kwong v. United States) might entitle you to a refund but hasn't been fully resolved yet, filing a protective claim tells the IRS: "I want this money back, and here is the legal basis, but I'm waiting for the court to finalize it."
The IRS places your claim in suspense. It doesn't approve or deny it. It just holds the door open. If the court eventually rules in taxpayers' favor, the IRS processes your claim. If the court rules against taxpayers, the IRS closes it. Either way, you haven't lost your chance.
The July 10, 2026 deadline (Kwong)
The biggest real-world example right now: the Kwong v. United States case argues that COVID-19 emergency declarations automatically postponed tax deadlines under IRC Section 7508A, making late-filing penalties invalid. Thousands of taxpayers paid these penalties and want refunds.
The statute of limitations for many of these claims expires July 10, 2026. If you paid late-filing penalties during 2020-2021 and didn't file a protective claim before that date, you lose the right to a refund permanently, even if the appellate court eventually rules for taxpayers.
How to file one
File IRS Form 843 with the legend "PROTECTIVE REFUND CLAIM PURSUANT TO [case name]" written across the top. Explain the legal basis on Line 7. Submit electronically through your IRS Online Account or mail via certified mail.
