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trial a portion of the Government's brief from the case before
the Court of Federal Claims. The brief made no such concession.
On brief, petitioner cites the opinion of the Court of Federal
Claims to establish this same point. In no conceivable way does
the opinion of the Court of Federal Claims support petitioner's
position. See Brown v. United States, Nos. 94-227C & 94-358C at
4-5 (Fed. Cl. Feb. 22, 1996). Accordingly, respondent is not
judicially estopped from assessing the deficiency for 1990.
In the alternative, petitioner argues that respondent is
precluded from asserting a deficiency for 1990 by the statute of
limitations. At trial, petitioner referred on occasion to the
"2-year" statute of limitations. We addressed the distinction
between the statutes of limitations for deficiency proceedings
and suits for the recovery of erroneous refunds in our previous
opinion denying petitioner's motion for summary judgment, Brown
v. Commissioner, T.C. Memo. 1996-100.
A suit for the recovery of an erroneous refund under section
7405 is merely one of several remedies open to the Government in
such a situation. Krieger v. Commissioner, 64 T.C. 214, 216
(1975). It is a civil action brought in the name of the United
States and does not preclude an alternative remedy; namely, the
determination of a deficiency by the Commissioner. Id. It has
been firmly established in our tax law that the Commissioner may
proceed through the deficiency route where there has been an
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