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extent jurisdiction is acquired by the Tax Court of the
subject matter of taxpayer's suit for refund. * * *
[Emphasis added.]
Subsection (e) does not apply if the case in the Court of
Federal Claims or the District Court, as the case may be, has
already proceeded to a hearing, that is, to actual trial. S.
Rept. 1622, 83d Cong., 2d Sess. 13, 611 (1954); see Hemmings v.
Commissioner, supra at 229. The main thrust of section 7422(e)
is to prevent two courts from having jurisdiction of the same
taxable year at the same time. Flora v. United States, 362 U.S.
145, 166 (1960). The filing of a refund action in the Court of
Federal Claims does not statutorily bar the Commissioner from
issuing a notice of deficiency for the same taxable year pursuant
to section 6212(a). Hemmings v. Commissioner, supra at 230.
Moreover, if the taxpayer files a petition with the Tax Court
before a hearing takes place in the refund suit, then the refund
suit is stayed. Id.
Since respondent filed a notice of deficiency prior to the
actual trial in the case before the Court of Federal Claims, and
since petitioner filed a petition pursuant to sections 6212 and
6213, this Court does have jurisdiction over petitioner's 1990
and 1991 taxes as determined in the notice of deficiency.
Statute of Limitations
Petitioner argues that respondent is precluded from
recovering tax on the amount refunded, because respondent's sole
remedy to recover the refund of withheld income tax made to
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