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prior to the date of the mailing of the notice of
deficiency.
Id. at ___, 116 S. Ct. at 652.
The Lundy Court also stated that:
[A] delinquent filer's entitlement to a refund in Tax
Court depends on the date of the mailing of the notice
of deficiency. Section 6512(b)(3)(B) tolls the
limitations period, in that it directs the Tax Court to
measure the look-back period from the date on which the
notice of deficiency is mailed and not the date on
which the taxpayer actually files a claim for refund.
But in the case of delinquent filers, section
6512(b)(3)(B) establishes only a 2-year look-back
period, so the delinquent filer is not assured the
opportunity to seek a refund in Tax Court: If the
notice of deficiency is mailed more than two years
after the taxes were paid, the Tax Court lacks
jurisdiction to award the taxpayer a refund.
Id. at ___, S. Ct. at 653.
Here, the notice of deficiency, dated August 18, 1994, was
mailed to Shelley more than 2 years after the taxes were deemed
paid on April 15, 1992. Under Lundy, since no tax return or
claim for refund was filed until after the notice of deficiency
was issued, Shelley is not entitled to a refund. See Lundy v.
Commissioner, 516 U.S. ___, 116 S.Ct. at 653. We anticipated
that result in Allen v. Commissioner, 99 T.C. 475 (1992), affd.
23 F.3d 406 (6th Cir. 1994). We there commented upon the
seemingly harsh consequences:
As is true in many of the cases in this field, the
result may seem harsh in view of an actual overpayment,
but petitioner failed to file his income tax return
more promptly, and the statute is precise. The unhappy
result for petitioner is the consequence of a "problem
of * * * [his] own creation". Berry v. Commissioner,
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