Patrick T. McGuinness - Page 6




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          the taxpayer and (2) the timely filing of a petition by the                 
          taxpayer.5  Secs. 6212, 6213, 7502; Rule 13(a), (c); Frieling v.            
          Commissioner, 81 T.C. 42, 46 (1983).  In the present case,                  
          respondent sent petitioner a valid notice of deficiency on August           
          22, 2005, and petitioner timely filed a petition for                        
          redetermination on October 17, 2005.  Thus, the jurisdictional              
          prerequisites are satisfied, and the Court has jurisdiction in              
          this deficiency proceeding.                                                 
          Recharacterization of Respondent’s Motion                                   
               In view of the filing of petitioner’s delinquent return and            
          respondent’s acceptance thereof, as well as the assessment of the           
          tax reported on that return, respondent concedes that there is no           
          deficiency in income tax nor any addition to tax due from                   
          petitioner for 2001.  However, respondent contends that refund or           
          credit of the $1,354 overpayment is barred by the statute of                
          limitations.                                                                
               Because this is an action for the redetermination of a                 
          deficiency over which we have jurisdiction, we have pendant                 
          jurisdiction to determine the amount of any overpayment.  Sec.              
          6512(b)(1).  In so doing, we necessarily consider whether refund            


               5  The validity of a notice of deficiency does not turn on             
          the substantive merits of the Commissioner’s determination; i.e.,           
          the correctness of that determination.  Rather, validity                    
          contemplates that the Commissioner did, in fact, make a                     
          determination in a notice of deficiency that is mailed to the               
          taxpayer at the taxpayer’s last known address.                              






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