Overview
A Notice of Deficiency (often called a 90-day letter or CP3219B) tells you the IRS proposes additional tax for one or more tax years. If you disagree, you have two primary routes: (1) file a petition with the U.S. Tax Court within 90 days (150 days if the notice was mailed to you outside the U.S.), or (2) seek an administrative resolution through the IRS Appeals Office by submitting a written protest. This article focuses on preparing a clear, effective written protest so you preserve options and give Appeals the facts and law it needs to evaluate your case.
Key deadlines and rights
- Time to act: The Notice of Deficiency gives you 90 days from the date the notice was mailed to file a petition with the U.S. Tax Court (150 days if mailed from outside the U.S.). Filing that petition preserves your right to litigate without first paying the tax. If you instead want Appeals to consider settlement, contact the IRS immediately — do not assume Appeals will accept delay.
- Nonpayment: Filing a protest/appeal does not always require you to pay the disputed tax while Appeals reviews the case, but interest generally keeps accruing on any tax ultimately owed.
- Source: See IRS Publication 5, Your Appeal Rights and How To Prepare a Protest (IRS.gov).
When to submit a written protest
- During or after audit: If your case is still in audit (before a Notice of Deficiency), a written protest is the standard way to request Appeals consideration.
- After a Notice of Deficiency: Your fastest, safest route to preserve your Tax Court right is to file a petition with the U.S. Tax Court. However, you can also pursue Appeals review after a Notice of Deficiency — Appeals may accept the case and try to settle it administratively. If you choose Appeals, prepare a written protest that follows the requirements in IRS Publication 5 and deliver it immediately to the address the IRS provides (or to the Appeals office handling your case). Also consider filing the Tax Court petition within the 90-day window to avoid losing the option to litigate.
What the IRS generally expects in a written protest
IRS guidance (Publication 5) lists the elements that make a protest complete. A strong protest includes:
1) Identification
- Your full name, current mailing address, and taxpayer identification number (SSN or EIN). Match the name shown on the notice when possible.
2) A clear statement that you want to appeal or protest the Notice of Deficiency
- Example: “I hereby protest the Notice of Deficiency dated [date], and request Appeals consideration for tax year(s) [year(s)].”
3) Notice information
- Include the notice date, the IRS office or symbol number shown on the notice (often called symbol or document numbers), and any reference or notice numbers (for example, CP3219B).
4) Tax periods and amounts
- Specify the tax year(s) involved and identify the amounts or line items you dispute. Be precise: list the adjustment (e.g., disallowance of $12,500 home-office deduction) rather than simply saying you disagree.
5) Statement of facts
- Lay out the relevant facts in plain language and in chronological order. Include dates, amounts, business activity descriptions, and any other details that support your position. This is your factual record — be concise but complete.
6) Legal argument
- Point to the relevant Internal Revenue Code sections, Treasury Regulations, IRS revenue rulings, or binding court decisions that support your position (for example, IRC §280A for home-office issues). You don’t need to write a law review article — a few citations plus a short explanation of how the law applies to your facts is helpful. When in doubt, say that you can provide legal authority if Appeals requests it.
7) Supporting documents
- Attach legible copies of receipts, canceled checks, invoices, contracts, photographs, contemporaneous logs, bank statements, or other documentation that corroborates your facts. Keep originals in your files — send copies only.
8) Penalty of perjury and signature
- Include a signed statement under penalty of perjury that the information is true, correct, and complete to the best of your knowledge. Use language similar to: “Under penalties of perjury, I declare that I have examined the facts presented in this statement and the accompanying schedules and that, to the best of my knowledge and belief, they are true, correct and complete.” Sign and date the protest.
9) Contact and representation details
- Provide daytime phone numbers and an email if available. If you are represented, include the representative’s name, firm, CAF number (if known), PTIN, or power-of-attorney information (Form 2848).
When is a formal written protest required?
- The IRS generally requires a formal written protest when the amount at issue exceeds certain thresholds or when the case is being forwarded to Appeals from the audit team. Refer to Publication 5 for current thresholds and guidance. For smaller-dollar disputes, IRS procedures may allow a less formal “signed statement” but include the same elements.
A simple protest template (outline)
- Heading: Your name, address, SSN/EIN, notice date, notice number
- Opening line: “I hereby protest the IRS Notice of Deficiency dated [date] for tax year(s) [years].”
- Itemized disputes: Numbered list of each adjustment you challenge with a one-sentence reason
- Factual summary: Short paragraphs listing key facts and supporting evidence
- Legal basis: Short citations and a sentence applying the law to your facts
- Attachments list: Enumerate the documents attached (e.g., A—photographs of home office; B—client invoices; C—bank statements)
- Declaration and signature: Penalty-of-perjury language, signature, printed name, title (if business), and date
Practical tips
- Act fast: If you receive a Notice of Deficiency, consider filing a petition with the U.S. Tax Court within 90 days while simultaneously contacting Appeals if you prefer administrative settlement. Filing the Tax Court petition preserves litigation rights even if you later settle.
- Use the address shown on the notice: The Notice of Deficiency usually lists how to petition the Tax Court and may list contact details for Appeals. If unsure, call the number on the notice or consult a tax professional.
- Send by a trackable method: Certified mail with a return receipt, or a carrier with signature tracking. Keep proof of mailing and delivery.
- Keep copies and organize exhibits: Create a numbered exhibit binder or PDF so Appeals can review quickly.
- Avoid originals: Send copies of documents, never the only original.
- Consider professional help: For complex issues or large-dollar disputes, hire a CPA, Enrolled Agent, or tax attorney. See our guide on The Difference Between an Enrolled Agent, CPA, and Tax Attorney (https://finhelp.io/glossary/the-difference-between-an-enrolled-agent-cpa-and-tax-attorney/).
What happens next
- Appeals review: If Appeals accepts the protest, an Appeals Officer—independent of the exam team—will be assigned. Appeals seeks to resolve disputes without litigation, using applicable law and sometimes compromise principles. The officer may ask for more documents, a conference call, or an in-person meeting.
- No Appeals or no agreement: If Appeals does not resolve the dispute, your remaining path is to file a Tax Court petition (if within the 90-day window) or pay the tax and later pursue a refund claim and, if denied, sue in U.S. District Court or the Court of Federal Claims. See How to Petition the U.S. Tax Court (https://finhelp.io/glossary/how-to-petition-the-u-s-tax-court/) and Taking Your Case to U.S. Tax Court (https://finhelp.io/glossary/taking-your-case-to-u-s-tax-court/).
Common mistakes to avoid
- Missing the 90-day deadline to petition Tax Court.
- Submitting a vague protest without facts or supporting documents.
- Failing to sign the penalty-of-perjury statement.
- Sending originals that you need later.
Related FinHelp resources
- CP3219B Notice: Notice of Deficiency with Right to Petition Tax Court: https://finhelp.io/glossary/cp3219b-notice-notice-of-deficiency-with-right-to-petition-tax-court/
- How to Petition the U.S. Tax Court: https://finhelp.io/glossary/how-to-petition-the-u-s-tax-court/
- How to Resolve a Disputed Tax Bill with the IRS: https://finhelp.io/glossary/how-to-resolve-a-disputed-tax-bill-with-the-irs/
- The Difference Between an Enrolled Agent, CPA, and Tax Attorney: https://finhelp.io/glossary/the-difference-between-an-enrolled-agent-cpa-and-tax-attorney/
Authoritative external resources
- IRS Publication 5, Your Appeal Rights and How To Prepare a Protest: https://www.irs.gov/pub/irs-pdf/p5.pdf
- U.S. Tax Court – official site: https://www.ustaxcourt.gov/
Bottom line
A written protest is a focused, fact-based document that asks the IRS Appeals Office to reconsider a proposed adjustment. If you receive a Notice of Deficiency, act quickly: decide whether to petition the Tax Court to preserve litigation rights or to pursue an administrative settlement through Appeals, and prepare a protest that clearly documents your facts and legal position. Well-organized evidence and a concise legal explanation improve your chances of a favorable outcome.