In February 2026, the Internal Revenue Service (IRS) announced that, as of December 31, 2025, it had closed all non-examined Employee Retention Credit (ERC) claims. This development could compel businesses to pursue litigation to secure their ERC refunds. In its announcement, the IRS also noted that approximately 41,000 claims remain under IRS examination or appeal.

The IRS’s announcement brings renewed focus to a risk we have been highlighting for some time: Statutes of limitation can quietly extinguish otherwise valid refund claims. As discussed in our article in Bloomberg on how to litigate and resolve ERC claims, administrative delay does not eliminate judicial deadlines. For taxpayers whose claims have been formally disallowed, Internal Revenue Code Section 6532(a) provides only two years to file a refund suit. A protest to the IRS Independent Office of Appeals (IRS Appeals) does not suspend that deadline. Without filing suit or obtaining a written extension (Form 907), the right to a refund can be permanently lost.

For taxpayers with ERC claims that are pending without action (i.e., those described in the IRS’s announcement), the statute of limitations analysis is more complex. Some courts have dismissed taxpayer suits that were filed more than six and a half years from the time the claim arose.[1] Under the logic of these cases, there may be a six-and-a-half-year limit in effect from the date a refund claim is filed – the six months a taxpayer must wait before filing a refund suit plus six years during which the government is susceptible to suit under a general statute of limitations on civil claims against the government (31 U.S.C. § 3702(b)). For ERC claims submitted in 2020, the end of this possibly applicable six-and-a-half-year period is quickly approaching. To the extent a court will apply this limitation, a taxpayer with an ERC refund claim may be barred from suit even without a formal disallowance by the IRS.

The message for businesses is consistent with our earlier guidance: Protecting the right to an ERC refund requires a proactive strategy. Taxpayers must identify which limitations periods apply to their claims, manage calendar critical deadlines, and evaluate whether protective litigation is necessary to preserve their potential refunds. Businesses facing challenged, delayed, or disallowed ERC claims should evaluate their statute posture urgently. Our tax controversy & litigation team continues to advise clients on navigating ERC audits, IRS Appeals proceedings, and refund litigation to ensure procedural missteps do not foreclose recovery.

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[1] See Wagenet v. United States, No. CV 08-01234, 2009 WL 4895363, at *5 (C.D. Cal. Sept. 14, 2009) (dismissing tax refund action as filed outside the six-year statute). See also Bowman Transp., Inc. v. United States, 220 Ct. Cl. 36, 40–41 (1979) (interpreting 28 U.S.C. § 2501 and explaining that “[d]espite the fact that the carrier has only two years from the date on which the refund claim is expressly disallowed or apparently the regular six-year period of limitations contained in 28 U.S.C. § [...]

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