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Nor can respondent salvage her position because the amount
of the alleged erroneous refund is less than the amount of the
deficiency originally determined in the notice so that only a
different ground for the deficiency is involved. The hard fact
is that the claim for the erroneous refund simply does not fall
within the definition of a deficiency and is therefore not merely
a new ground for a properly claimed deficiency.
We conclude that the subject matter of respondent's
amendment to answer is not within our jurisdiction, and therefore
respondent's motion will be denied. We note, however, that
respondent may pursue recovery of the refund in U.S. District
Court under section 7405. Generally, the period of limitation
for bringing suit is within 2 years of making the erroneous
refund. Secs. 7405(d), 6532(b). Our determination that we lack
jurisdiction with respect to respondent's claim appears to
preclude the application of the principles of res judicata to the
decision of no deficiency in tax for 1991 which will be entered
herein. United States v. Wynshaw, 697 F.2d 85, 87 (2d Cir.
1983); Morse v. United States, 494 F.2d 876, 879 (9th Cir. 1974).
An appropriate order will
be entered denying respondent's
motion, and decision will be
entered for petitioner.
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