Barry S. Michelson - Page 9

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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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