Susan L. Lesinski - Page 3

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          estimated tax, and the remaining $200 to the estimated tax                  
          penalty.  On October 19, 1995, the IRS received the return.                 
               On October 27, 1995, petitioner, at that time a resident of            
          New York, filed her petition in this case, attaching a copy of              
          the return.  Respondent filed her answer on December 1, 1995.  On           
          April 5, 1996, we issued our notice setting the case for trial at           
          the trial session beginning September 9, 1996.                              
               In or about April 1996, the IRS, allegedly without the                 
          knowledge of respondent's counsel in this case, issued a refund             
          to petitioner and her husband for the taxable year 1991 (the                
          refund) in the amount of $10,043.59 ($9,915.00 plus interest).              
          At some point, respondent accepted the return as filed, and on              
          June 26, 1996, sent petitioner a decision document reflecting no            
          deficiency.2  On August 28, 1996, respondent filed her motion for           
          leave to file an amendment to answer in order to recover the                
          refund, alleging that it was erroneous because neither petitioner           
          nor her husband was eligible for a refund due to the expiration             
          of the period of limitations contained in sections 6512(b)(3) and           
          6511(b)(2).  In her motion, respondent states that the deficiency           
          she now seeks "is solely attributable to the erroneous refund"              
          and that she is no longer seeking any additions to tax.                     
               Petitioner opposes respondent's motion on the grounds that             
          the matter of the deficiency as stated in the notice was resolved           

               2  The record contains a copy of the decision document                 
          showing that petitioner signed it on Aug. 7, 1996.                          




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