James E. Brown - Page 7

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          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               





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