- 7 -
erroneous refund as in this case. 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., section 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.
This case is before the Court pursuant to the issuance of a
notice of deficiency by respondent and petitioner's timely filing
of a petition. 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. The notice of deficiency was issued on May
12, 1995. Respondent determined that petitioner filed his 1990
return on July 1, 1992. Petitioner asserts that he filed his
1990 return on June 6, 1991. The statute of limitations,
therefore, turns on when the return is deemed filed.
Filing, generally, "is not complete until the document is
delivered and received." United States v. Lombardo, 241 U.S. 73,
76 (1916). This general presumption, however, is modified by
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011