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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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