Robert C. Austin - Page 10

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          based on the time of payment of the tax.  Where no return has               
          been filed, and no claim for a refund has been made, prior to the           
          issuance of the notice of deficiency, the amount of the refund is           
          limited to those amounts paid either (1) after the mailing of the           
          notice of deficiency or (2) within the 2-year period prior to the           
          date of the mailing of the notice.  Secs. 6512(b)(3), 6511(b)(2);           
          Commissioner v. Lundy, 516 U.S. ___, ___, 116 S.Ct. 647, 652                
          (1996); Gabelman v. Commissioner, 86 F.3d 609, 611 (6th Cir.                
          1996), affg. T.C. Memo. 1993-592.                                           
               In the instant case, petitioner filed no return and made no            
          claim for a refund prior to the mailing of the notice of                    
          deficiency.  The amount of petitioner's refund as determined by             
          this Court is limited to the amount of 1988 taxes paid in the 2-            
          year period preceding the mailing of the notice of deficiency on            
          January 9, 1995.2  The remittance was mailed to the IRS on April            
          15, 1989.  If the remittance constituted a payment of tax, rather           
          than a deposit, the refund of that amount is barred.  Gabelman v.           
          Commissioner, supra at 611.  Respondent argues that the                     

          2 The parties have not suggested that any payments were made                
          after the notice of deficiency was mailed.  However, consistent             
          with petitioner's argument that the remittance was a deposit in             
          the nature of a cash bond, it may be that petitioner regards the            
          date of filing of his 1988 tax return, on April 7, 1995, as the             
          date of payment and hence the date of overpayment of his tax.               
          See Risman v. Commissioner, 100 T.C. 191, 194, 203 (1993).  For             
          this Court to have subject matter jurisdiction, there must first            
          be a payment of tax before this Court can determine the existence           
          and amount of any overpayment under sec. 6512(b).  See Johnson v.           
          Commissioner, T.C. Memo. 1993-562.                                          

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