James E. Brown - Page 9

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          where there has been an erroneous refund.  Pesch v. Commissioner,           
          78 T.C. 100, 120 (1982); Krieger v. Commissioner, supra; Beer v.            
          Commissioner, T.C. Memo. 1982-735, affd. 733 F.2d 435 (6th Cir.             
          1984); see also Burnet v. Porter, 283 U.S. 230 (1931); Miller v.            
          Commissioner, 23 T.C. 565 (1954), affd. 231 F.2d 8 (5th Cir.                
          1956); H. Rept. 849, 79th Cong., 1st Sess. (1945), 1945 C.B. 566,           
          583.  When the Commissioner resorts to the deficiency procedure,            
          it is clear that the period of limitations applicable to such               
          course of action, i.e., sec. 6501, is controlling rather than the           
          2-year period applicable to suits for the recovery of erroneous             
          refunds.  Pesch v. Commissioner, supra; Krieger v. Commissioner,            
          supra.                                                                      
               Under the general rule of section 6501(a), a deficiency must           
          be assessed within 3 years from the date on which the return is             
          filed.  Since we view facts in the manner most favorable to the             
          party opposing summary judgment, see Estate of Gardner v.                   
          Commissioner, 82 T.C. 989 (1984), we assume petitioner filed his            
          1990 Federal income tax return on July 1, 1992.  The statutory              
          notice of deficiency was issued on May 12, 1995.  Therefore, the            
          3-year statute of limitations was met.                                      
          Estoppel                                                                    
               The final argument we must consider in petitioner's motion             
          for summary judgment appears to be an estoppel argument.                    
          Petitioner contends that because respondent accepted his return             
          for 1990 and issued him a refund, respondent should now be barred           




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