13
Petitioner contends that he made additional verbal requests
for refunds of the 1986 and 1987 overpayments during a conference
with Appeals Officer Roger Caruso (Mr. Caruso) held in February
1993. Petitioner testified as follows about the conversation
that he and Mr. Caruso had concerning the rental arrangement
between the FCC and the nursery:
I did mention to him, in a subtle manner as opposed to a
demand-type thing, that in the event that the rental concept
is disallowed, then it will result in a net operating loss
on * * * my 1989 and 1990 returns, that I would like to be
able to utilize. And at that point, I think I got a nod.
Petitioner claims that Mr. Caruso assured him that the NOL's
would be taken into account during the final adjustment process.
However, on February 16, 1994, respondent issued a notice of
deficiency that failed to address the NOL's or refunds.
Petitioner asserts that he contacted Appeals Officer Lynn
Morrison regarding the omission and was told that the issue would
be resolved by the Tax Court and his verbal requests for refunds
constituted valid claims made within the period of limitations.
At no time prior to the issuance of the notice of deficiency did
petitioners file a protective claim for refund (Form 843), or any
written request regarding the 1986 or 1987 overpayments resulting
from the NOL's.2
2 Petitioners filed a refund suit in the U.S. District Court
for the Middle District of Florida, claiming a refund or credit
based solely on their 1986 return as filed. The District Court
ruled that the refund or credit was barred by sec. 6511. Hodel
v. United States, 74 AFTR 2d 94-6001, 94-2 USTC par. 50,427 (M.D.
(continued...)
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