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estimated tax, and the remaining $200 to the estimated tax
penalty. On October 19, 1995, the IRS received the return.
On October 27, 1995, petitioner, at that time a resident of
New York, filed her petition in this case, attaching a copy of
the return. Respondent filed her answer on December 1, 1995. On
April 5, 1996, we issued our notice setting the case for trial at
the trial session beginning September 9, 1996.
In or about April 1996, the IRS, allegedly without the
knowledge of respondent's counsel in this case, issued a refund
to petitioner and her husband for the taxable year 1991 (the
refund) in the amount of $10,043.59 ($9,915.00 plus interest).
At some point, respondent accepted the return as filed, and on
June 26, 1996, sent petitioner a decision document reflecting no
deficiency.2 On August 28, 1996, respondent filed her motion for
leave to file an amendment to answer in order to recover the
refund, alleging that it was erroneous because neither petitioner
nor her husband was eligible for a refund due to the expiration
of the period of limitations contained in sections 6512(b)(3) and
6511(b)(2). In her motion, respondent states that the deficiency
she now seeks "is solely attributable to the erroneous refund"
and that she is no longer seeking any additions to tax.
Petitioner opposes respondent's motion on the grounds that
the matter of the deficiency as stated in the notice was resolved
2 The record contains a copy of the decision document
showing that petitioner signed it on Aug. 7, 1996.
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