J. Leslie James - Page 5




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               Respondent has no record of receiving a 1993 return from               
          petitioner before April 15, 1997.  Petitioner and respondent                
          stipulate that petitioner and his wife overpaid their 1993 income           
          tax by $6,267.65.                                                           
          E.   Petitioner's Federal Income Tax Returns for 1994 to 1996               
               Petitioner requested and received extensions of time to                
          October 15, 1995, 1996, and 1997, to file his Federal income tax            
          returns for 1994, 1995, and 1996, respectively.  He had not yet             
          filed those returns as of the time of trial in 1998.                        
                                       OPINION                                        
          A.   Background and Contentions of the Parties                              
               The Tax Court has jurisdiction to award to a taxpayer a                
          refund of overpaid taxes which the taxpayer paid during either              
          the 2 years before respondent issued the notice of deficiency or            
          3 years before the taxpayer filed his or her return.  Secs.                 
          6511(b)(2)(A) and (B), 6512(b)(3)(B); Commissioner v. Lundy, 516            
          U.S. 235, 242 (1996).  The 2-year period applies if the taxpayer            
          filed his or her income tax return after respondent issued a                
          notice of deficiency for that year.  Secs. 6511(b)(2)(B),                   
          6512(b)(3); Commissioner v. Lundy, supra at 243.  Thus, if                  
          petitioner filed his 1993 Federal income tax return before                  
          respondent sent the notice of deficiency on March 24, 1997, then            
          we would have jurisdiction to award a refund of $6,267.65 for               
          1993 if petitioner paid at least that much tax for 1993 during              






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