§ 57-38-40 — Claim for credit or refund

1. Except as otherwise provided in this section, a person may file a claim for credit or
refund of an overpayment of any tax imposed by this chapter within three years after
the due date of the return or within three years after the return was filed, whichever
period expires last.
a. As to any corporation or other person whose principal place for managing or
directing a business is outside North Dakota, if the period for assessment
remains open under subsection 2 of section 57-38-38, the period of time for filing
of a claim for credit or refund will remain open for the same period prescribed in
subsection 2 of section 57-38-38.
b. An individual who filed a return of income as a resident of this state and is
assessed tax by another state or territory of the United States or the District of
Columbia on that income after the time for filing a claim has expired under this
section is entitled to a credit or refund for the amount of tax paid to the other
jurisdiction, not including penalty or interest, as provided under subsection 1 or 4

of section 57-38-30.3, notwithstanding the time limitations of this section. The
claim for the credit or refund under this subdivision must be submitted to the
commissioner within one year from the date the taxes were paid to the other
jurisdiction. The taxpayer must submit sufficient proof to show entitlement to a
credit or refund under this subdivision.
2. If there is a change in taxable income or income tax liability by an amount which is in
excess of twenty-five percent of the amount of taxable income or income tax liability
stated in the return as filed, a person may file a claim for credit or refund of any tax
imposed by this chapter within six years after the due date of the return or within six
years after the return was filed, whichever period expires last. The provisions of this
subsection do not create or increase any net operating loss otherwise recognized
under this chapter for purposes of carryover to any subsequent taxable period or
carryback to any prior taxable period.
3. A corporation may file a claim for credit or refund of an overpayment of tax resulting
from the carryback of a net operating loss under subsection 3 of section 57-38-01.3, or
resulting from a federal capital loss carryback, within three years after the prescribed
due date for filing the return, including extensions, for the tax year in which the loss
was incurred. The provisions of this subsection applicable to net operating losses are
ineffective for loss years beginning after December 31, 2002.
4. A person other than a corporation may file a claim for credit or refund of an
overpayment of tax resulting from the carryback of a net operating loss within three
years after the prescribed due date for filing the return, including extensions, for the
tax year in which the loss was incurred. The provisions of this subsection are effective
for loss years beginning after December 31, 1986.
5. Notwithstanding any other provision in this section, if any taxpayer, with or without
intent to evade any tax imposed by this chapter, fails to file a state income tax return
within three years after the due date of the return prescribed in this chapter, no credit
or refund of overwithheld income tax or overpaid estimated income tax may be made.
6. If any person consents to an extension of time for the assessment of state income tax,
under subsection 8 of section 57-38-38, the period of time for filing a claim for credit or
refund will be similarly extended. Provided, however, if an assessment is issued, the
taxpayer has sixty days from the assessment to file a claim for refund. If a claim for
refund is filed in any year extended by an agreement under subsection 8 of section
57-38-38, the tax commissioner may assess additional tax for any year extended by
the same agreement which has otherwise expired. The additional assessment is
limited to issues raised in the claim for refund.
7. a. If a person required to file an amended state income tax return, or other
information as required by the tax commissioner, under section 57-38-34.4, does
so within the ninety-day period prescribed therein, an overpayment of state
income tax attributable to the changes or corrections made by the United States
internal revenue service, or other competent authority, must be credited or
refunded to the person by the tax commissioner, even though other time periods
prescribed in this section may have expired; provided the person submits a notice
or other pertinent documentation as proof of the final determination of the
changes or corrections by the United States internal revenue service, or other
competent authority.
b. If a person required to file an amended state income tax return, or other
information as required by the tax commissioner, under section 57-38-34.4, does
not do so within the ninety-day period prescribed therein, an overpayment of state
income tax attributable to the changes or corrections made by the United States
internal revenue service, or other competent authority, must be credited or
refunded to the person by the tax commissioner if the person files the amended
state income tax return, or other information as required by the tax commissioner,
within two years after the final determination of the changes or corrections made
by the United States internal revenue service, or other competent authority, even
though other time periods prescribed in this section may have expired. This

provision does not limit or restrict any other time period prescribed in this section
that has not expired as of the end of the two-year period prescribed in this
subsection. Any interest otherwise allowed by section 57-38-35.2 does not accrue
after the ninety-day period prescribed in section 57-38-34.4, if this subdivision
applies.
c. This subsection applies to any taxable year of an individual, estate, or trust for
which changes or corrections have been made by the United States internal
revenue service or other competent authority.
8. a. If a return is filed by an individual or an individual and spouse and, after the death
of the individual, a refund claim is filed or becomes payable, the tax
commissioner shall approve the refund for payment to the legal representative of
the decedent upon application and presentation of certified copies of letters
testamentary or letters of administration establishing the fiduciary relationship of
the legal representative.
b. If the legal representative of the taxpayer has not made application for the refund
of the deceased taxpayer within one year from the date of the taxpayer's death,
the tax commissioner may approve the refund to any person within the
classifications set out herein and with the following priority: surviving spouse,
children, grandchildren, parents, grandparents, and other relatives, upon proper
application establishing the relationship of the claimant. Should an application be
received from more than one individual in any of the classifications set out herein,
the tax commissioner shall honor the earliest postmarked application which is
properly filed pursuant to rules adopted by the tax commissioner.
c. When the tax commissioner acting in good faith has approved a refund payment
pursuant to the provisions of this subsection, the tax commissioner shall not be
held responsible to any person or legal representative of the decedent who may
have qualified to make a proper application but has failed to do so within one year
from the date of death of the deceased taxpayer.
9. Every claim for credit or refund shall be made by filing with the tax commissioner an
amended return, or other report as prescribed by the tax commissioner, accompanied
by a statement outlining the specific grounds upon which the claim for credit or refund
is based.
10. If the tax commissioner disallows a claim for credit or refund, in part or in full, the tax
commissioner shall notify the taxpayer accordingly. The decision of the tax
commissioner denying a claim for credit or refund is final and irrevocable thirty days
after the date the notice is mailed to the taxpayer unless, within this thirty-day period,
the taxpayer has filed a protest with the tax commissioner.
11. The protest shall set forth the grounds on which the protest is based, along with any
other information as may be required by the tax commissioner. If the taxpayer has so
requested, the tax commissioner may grant the taxpayer or the authorized
representative of the taxpayer an informal conference.
12. The tax commissioner shall reconsider the denial of the claim for credit or refund after
the filing of a protest. The reconsideration may include the further examination by the
tax commissioner or the authorized representative of the tax commissioner of a
taxpayer's books, papers, records, or memoranda, including corporate minutes and
committee notes.
13. Within a reasonable period of time after protest, the tax commissioner shall notify the
taxpayer of the tax commissioner's reconsideration of claim for credit or refund. If the
decision of the tax commissioner is a denial, the decision is final and irrevocable
unless the taxpayer within thirty days following the date of the tax commissioner's
decision seeks formal administrative review of the tax commissioner's reconsideration
of claim for credit or refund by filing a complaint and requesting an administrative
hearing. The complaint must be personally served on the tax commissioner or sent by
certified mail. The provisions of chapter 28-32 shall apply to and govern the
administrative hearing procedure, including appeals from any decision rendered by the

tax commissioner. Upon written request of a taxpayer, the tax commissioner may grant
a reasonable extension of time for the filing of a complaint.
14. If the tax commissioner determines that an amount in excess of the correct amount of
tax, interest, or penalty due from any person has been paid by or on behalf of that
person because of income tax withheld or estimated tax paid, the tax commissioner
may approve a refund of the excess amount which shall be paid to that person in the
manner provided for payment of other claims against the state, except that it shall not
be necessary to first file a claim for refund if the amount to be refunded was paid with
respect to a return or report filed by that person with the tax commissioner in the form
prescribed therefor.
15. If the tax commissioner determines there has been an overpayment of tax, any
overpaid penalty and interest on that tax must be refunded or credited by the tax
commissioner. If interest is paid under section 57-38-35.2, no interest will be paid
under this subsection.
16. A person that would have been entitled to a credit or refund under chapter 57-35.3 for
a taxable year beginning before January 1, 2013, may file a claim for refund or credit
of an overpayment of tax.