Barry S. Michelson - Page 8

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               This case is governed by Commissioner v. Lundy, 516 U.S.               
          ___, 116 S. Ct. 647 (1996).  In Lundy, income taxes of the                  
          taxpayers (husband and wife) were withheld from their wages                 
          during 1987.  On September 26, 1990, the Commissioner issued a              
          notice of deficiency to the taxpayer-husband.  Three months                 
          later, on December 22, 1990, the taxpayers filed their 1987 joint           
          return.  Id. at ___, 116 S. Ct. at 649.                                     
               The Court framed the issue as follows:  "[W]e must determine           
          which of these two look-back periods to apply when the taxpayer             
          fails to file a tax return when it is due, and the Commissioner             
          mails the taxpayer a notice of deficiency before the taxpayer               
          gets around to filing a late return."  Id. at ___, 116 S. Ct. at            
          652.  The Supreme Court held that the 2-year period applied:                
                    We reach this conclusion by following the                         
               instructions set out in section 6512(b)(3)(B).  The                    
               operative question is whether a claim filed "on the                    
               date of the mailing of the notice of deficiency" would                 
               be filed "within 3 years from the time the return was                  
               filed."  * * *  In the case of a taxpayer who does not                 
               file a return before the notice of deficiency is                       
               mailed, the claim described in section 6512(b)(3)(B)                   
               could not be filed "within 3 years from the time the                   
               return was filed."  No return having been filed, there                 
               is no date from which to measure the 3-year filing                     
               period described in section 6511(a).  Consequently, the                
               claim contemplated in section 6512(b)(3)(B) would not                  
               be filed within the 3-year window described in section                 
               6511(a), and the 3-year look-back period set out in                    
               section 6511(b)(2)(A) would not apply.  The applicable                 
               look-back period is instead the default 2-year period                  
               described in section 6511(b)(2)(B), which is measured                  
               from the date of the mailing of the notice of                          
               deficiency, see section 6512(b)(3)(B).  The taxpayer is                
               entitled to a refund of any taxes paid within two years                





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