How to Appeal Your ERC Denial

If your ERC claim was denied, you have the right to appeal. The appeals process gives you a chance to present your case to an independent IRS officer who wasn't involved in the original decision. This guide walks you through exactly how to file an appeal, what deadlines apply, and how to give yourself the best chance of success.

The 30-Day Appeal Deadline

From the date of your denial letter, you have 30 days to request an appeal to the IRS Independent Office of Appeals. This deadline is firm—if you miss it, your only option is federal court litigation.

Types of Appeals

The type of appeal you file depends on the amount of your claim:

• Small case request (under $25,000): You can submit a brief written statement explaining why you disagree with the denial. No formal format is required.
• Formal written protest ($25,000 or more): You must submit a detailed written protest following IRS requirements. This is essentially a legal brief arguing your case.

How to File a Formal Written Protest

For claims of $25,000 or more, your protest must include:

1. Your identifying information: Name, address, EIN, and a daytime phone number.
2. Statement of intent to appeal: A clear statement that you want to appeal the denial to the Office of Appeals.
3. Copy of the denial letter: Attach the letter you received from the IRS.
4. Tax periods at issue: Identify the specific quarters for which you're appealing.
5. Statement of facts: A complete description of the facts supporting your eligibility.
6. Statement of law: Cite the relevant statutes, regulations, and IRS guidance that support your position.
7. Arguments: Explain specifically why you believe you qualified for the ERC.
8. Signature under penalties of perjury: Sign the protest declaring that the facts are true and correct.

What Happens in IRS Appeals?

After you file your protest, here's what to expect:

• Case assignment: Your case will be assigned to an Appeals Officer who will review your file.
• Appeals conference: You'll have a conference (usually by phone) to discuss your case with the Appeals Officer.
• Document submission: You may have the opportunity to submit additional documentation.
• Decision: The Appeals Officer will issue a decision sustaining, modifying, or reversing the denial.

Timeline for Appeals

The ERC appeals process typically takes:

• Initial assignment: 1-3 months for your case to be assigned after you file.
• Conference scheduling: 2-4 months to schedule an Appeals conference.
• Decision: 1-3 months after the conference for a final decision.
• Total time: Typically 5-10 months from filing to resolution.

What If Appeals Denies Your Case?

If the Appeals Officer upholds the denial, you still have options:

• File in federal court: You can file a refund suit in U.S. District Court or the Court of Federal Claims (if within 2 years).
• Request reconsideration: In limited circumstances, you may be able to request Appeals reconsider.
• Accept the decision: If you've exhausted your options or lack strong grounds, accepting may be the practical choice.