Form 843 Protective Claim Wording: The Exact Language for a Kwong-Based Refund Claim

TL;DR

Sample wording for the protective-claim line at the top of Form 843, plus example explanation paragraphs by penalty type. Reviewed against the National Taxpayer Advocate's Kwong-claim guidance.

In one paragraph

A protective claim is filed on Form 843 with the words "Protective Refund Claim Pursuant to Kwong Case" written across the top of the form. The claim preserves the right to a refund of COVID-era penalties while the Kwong v. United States appeal is still pending. Below: the exact header language, the sample explanation paragraphs to use in line 7 by penalty type, and the practical filing details.

The header line — written across the top of Form 843

Across the top of every Form 843 filed as a protective claim, write or type, in capital letters where possible:

PROTECTIVE REFUND CLAIM PURSUANT TO KWONG CASE

The exact wording is what the National Taxpayer Advocate referenced in the April 30, 2026 blog post on Kwong-based filings. Variations such as "Protective Refund Claim — Kwong v. United States" or "Protective Claim Per Kwong, 179 Fed. Cl. 382" are also acceptable; the IRS's intake processors are looking for the word "protective" plus a reference to Kwong.

Line 7 explanation — sample paragraphs by penalty type

Line 7 of Form 843 is the explanation block. The protective-claim version should: (1) reference IRC § 7508A(d), (2) cite Kwong v. United States, 179 Fed. Cl. 382 (Nov. 2025), (3) state the COVID disaster window dates, (4) identify the specific penalty, and (5) note the appeal is pending and the claim is filed protectively.

Failure-to-file penalty (IRC § 6651(a)(1))

This is a protective refund claim filed pursuant to Kwong v. United States, 179 Fed. Cl. 382 (Nov. 2025), in which the U.S. Court of Federal Claims held that IRC § 7508A(d) automatically suspended IRS filing and payment deadlines for the entire COVID-19 federal disaster period (January 20, 2020 through July 10, 2023). Taxpayer was assessed a failure-to-file penalty under IRC § 6651(a)(1) in connection with [tax year and form] whose original due date fell within the disaster window. Under the Kwong reading of § 7508A(d), the underlying filing deadline was suspended, the failure-to-file penalty therefore should not have been assessed, and the amount paid should be refunded. Taxpayer files this claim protectively while the appeal of Kwong remains pending in the U.S. Court of Appeals for the Federal Circuit.

Failure-to-pay penalty (IRC § 6651(a)(2))

This is a protective refund claim filed pursuant to Kwong v. United States, 179 Fed. Cl. 382 (Nov. 2025). Taxpayer was assessed a failure-to-pay penalty under IRC § 6651(a)(2) in connection with [tax year and form] whose original payment deadline fell within the COVID-19 federal disaster period (January 20, 2020 through July 10, 2023). Under the Kwong reading of IRC § 7508A(d), the underlying payment deadline was automatically suspended, the failure-to-pay penalty therefore should not have been assessed, and the amount paid should be refunded. Filed protectively while the Kwong appeal remains pending.

Estimated-tax penalty (IRC § 6654 or § 6655)

This is a protective refund claim filed pursuant to Kwong v. United States, 179 Fed. Cl. 382 (Nov. 2025). Taxpayer was assessed an estimated-tax penalty under IRC § 6654 [or § 6655 for corporate taxpayers] in connection with [tax year], computed against quarterly installment due date(s) that fell within the COVID-19 federal disaster period (January 20, 2020 through July 10, 2023). Under the Kwong reading of IRC § 7508A(d), the underlying installment deadlines were automatically suspended, the estimated-tax penalty therefore should not have been assessed, and the amount paid should be refunded. Filed protectively while the Kwong appeal remains pending.

Interest on unpaid tax (IRC § 6601)

This is a protective refund claim filed pursuant to Kwong v. United States, 179 Fed. Cl. 382 (Nov. 2025). Taxpayer was charged interest under IRC § 6601 on tax whose original payment deadline fell within the COVID-19 federal disaster period (January 20, 2020 through July 10, 2023). Under the Kwong reading of IRC § 7508A(d), the underlying payment deadline was automatically suspended, the interest accrual during the suspended window was therefore not authorized, and the amount paid should be refunded. Filed protectively while the Kwong appeal remains pending.

International information return penalty (Forms 8938, 5471, 5472, 1099, 1095)

This is a protective refund claim filed pursuant to Kwong v. United States, 179 Fed. Cl. 382 (Nov. 2025). Taxpayer was assessed a penalty under IRC § [applicable provision — e.g., 6038, 6038A, 6679, 6721, 6722] in connection with the late filing of Form [8938 / 5471 / 5472 / 1099 / 1095] whose original filing deadline fell within the COVID-19 federal disaster period (January 20, 2020 through July 10, 2023). Under the Kwong reading of IRC § 7508A(d), the underlying filing deadline was automatically suspended, the penalty therefore should not have been assessed, and the amount paid should be refunded. Filed protectively while the Kwong appeal remains pending.

Practical filing mechanics

  • One Form 843 per tax year. Multiple penalty types in the same year all go on a single Form 843 for that year.
  • Box 5a (type of tax): Check the box matching the underlying tax (e.g., "Income").
  • Box 6 (type of penalty): Specify the IRC section.
  • Line 4 (period of tax): The original tax year.
  • Mail certified with return receipt requested. The certified-mail postmark establishes the filing date for the § 6511 deadline.
  • Mailing address: Listed in the latest Form 843 instructions.
  • Keep copies of everything.

Frequently asked questions

Do I have to use the exact words "Kwong Case" in the header?

The IRS does not have a published required format. Variations are acceptable as long as the IRS intake processor can recognize the claim as protective and tied to Kwong.

Do I need to estimate a refund amount on a protective claim?

Yes — line 2 of Form 843 asks for a dollar figure. For a protective claim, list the assessed penalty amount from the IRS account transcript.

Should I file separate protective claims for FTF, FTP, and interest in the same year?

No. A single Form 843 per tax year covers all penalty types and interest for that year.

What if I have already paid the penalty and the IRS already issued a refund check?

Check the transcript for matching abatement codes (167, 271, 277) before filing. There is no additional Kwong-based refund for an assessment the IRS has already refunded.

Does PenaltyBack handle the protective-claim filing or just the analysis?

Both. PenaltyBack prepares the formal Form 843 with the exact protective-claim wording and mails the claim on the taxpayer's behalf. Total turnaround for the analysis-and-prep phase is typically 5–7 business days.