The short answer
If you disagree with changes the IRS proposes after an audit, you usually have two separate paths. You can ask for an administrative appeal with the IRS Independent Office of Appeals, within the time limit in your letter. And once the IRS issues a notice of deficiency, you can petition the U.S. Tax Court within the period in that notice — usually 90 days, or 150 days if it is addressed to a person outside the United States. These are different steps with different deadlines.
Before you appeal
- Send what was asked for. Give the IRS employee handling your case every document and explanation they requested, within the time limit. New information raised for the first time at Appeals may be sent back to the examiner, which delays your case.
- Talk to the examiner, then a supervisor. If you still disagree, you may ask for Fast Track Settlement, if your case qualifies, or an administrative appeal.
- Read your letter. It says which appeal rights you have, how to request an appeal, and what happens if you do nothing.
Small case request or formal written protest
| Small case request | Formal written protest | |
|---|---|---|
| When it can be used | Total tax and penalties for each tax period in the letter is $25,000 or less | Required if any tax period is over $25,000 — then for all periods; also for partnership, S corporation, employee plan, and exempt organization cases regardless of amount |
| How to make it | A brief written statement of the disputed issues and why you disagree, the appeal form included with your letter, or Form 12203 | A written protest stating that you want to appeal, with the required contents listed below |
| Where to send it | To the address in the letter, within the time limit in the letter | To the address in the letter, within the time limit in the letter |
A formal written protest must include:
- A statement that you want to appeal the IRS's proposed changes, and your name, address, and daytime telephone number.
- All disputed issues, the tax periods or years involved, the proposed changes, and why you disagree with each issue.
- The facts, and any law or authority, supporting your position on each disputed issue.
- A signed penalties of perjury statement. A representative who submits the protest uses a different statement depending on whether they have personal knowledge of the facts.
What happens at Appeals
- An informal conference. Appeals contacts you or your representative to schedule it.
- Tax-law arguments only. Appeals cannot consider arguments based only on moral, religious, political, constitutional, conscientious, or similar objections.
- Assessment deadline. The IRS may ask you to extend the time it has to assess tax. Publication 5 says Appeals will not accept a case if you choose not to extend when more time is needed.
- No agreement. For income tax cases, Appeals sends a notice of deficiency, which gives you the right to go to Tax Court.
Administrative appeal vs. Tax Court petition
| Administrative appeal (IRS Appeals) | U.S. Tax Court petition | |
|---|---|---|
| What starts it | A letter proposing changes, such as an audit report | A notice of deficiency (also called a 90-day letter) or another notice giving Tax Court rights |
| Deadline | The time limit stated in your letter | The period in the notice: usually 90 days, or 150 days if addressed to a person outside the U.S.; set by law and cannot be extended |
| Who decides | An Appeals employee, independent of the examiner | A court that is independent of the IRS |
| Payment first? | No | No — the Tax Court is generally a prepayment forum; a filing fee applies but may be waived if you qualify |
If you petition the Tax Court without having gone to Appeals first, you will normally have a chance to settle with Appeals while waiting for trial. Other courts — a U.S. District Court or the U.S. Court of Federal Claims — generally require that you first pay the tax in full and file a timely refund claim.
Collection appeals are different
Disputes over a lien, levy, seizure, or payment plan follow their own procedures — mainly Collection Due Process hearings (Form 12153) and the Collection Appeals Program (Form 9423) — with much shorter deadlines. See IRS Tax Liens, Levies, and Collection Appeals.
Representation
- You may represent yourself, or appoint an attorney, certified public accountant, or enrolled agent.
- File Form 2848 if your representative will talk to Appeals without you. A person who is not qualified to practice may attend as a witness but cannot represent you.
- A Low Income Taxpayer Clinic may be able to represent you if you qualify.
Common mistakes
- Waiting for Appeals while the 90-day (or 150-day) Tax Court period runs out.
- Assuming every appeal has the same deadline — the letter controls the administrative appeal, and the notice of deficiency controls the Tax Court petition.
- Sending a small case request when a period is over $25,000.
- Holding back documents until Appeals, which can send the case back to the examiner.
- Arguing only that a tax is unfair or unconstitutional, which Appeals cannot consider.
No one can extend the Tax Court period. If you do not petition in time, the IRS will send you a bill, and the other courts generally require you to pay first. If you are close to a deadline or the amount is large, consider getting help from a qualified tax professional or a Low Income Taxpayer Clinic.