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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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