- 10 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011