- 9 - 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,Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
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