- 14 -
refund under section 6511. See also section 1.402(e)-3(c)(1),
Proposed Income Tax Regs., 40 Fed. Reg. 18810 (Apr. 30, 1975).6
In this case, petitioners have stipulated that their claims for
refund for tax years 1987, 1988, and 1991 were barred by section
6511(b)(2)(B). Petitioners made no such stipulation with respect
to tax year 1990.7 For tax year 1990, petitioners did not file a
return until on or around January 15, 1996, and had not paid any
tax by that date, except withholding tax. Pursuant to section
6513(b)(1), petitioners are deemed to have paid the withholding
tax on April 15, 1991. Because petitioners did not file a return
before receiving the notice of deficiency, the time period in
which they must claim any refund is 2 years from the time the tax
was paid. See Commissioner v. Lundy, 516 U.S. ___, ___, 116
S.Ct. 647, 652 (1996). Thus, when they filed their original
return for tax year 1990 they were barred from claiming a refund.
Consequently, under section 11.402(e)(4)(B)-1(c)(1), Temporary
6 Respondent relies on the proposed regulations in her
brief. As already noted, proposed regulations carry no more
weight than a position advanced by respondent on brief. F.W.
Woolworth Co. v. Commissioner, supra. However, the temporary
regulations, not cited by respondent, are identical, in all
respects relevant for this case, to the proposed regulations.
See Hall v. Commissioner, T.C. Memo. 1991-133. In general
temporary regulations remain in effect until replaced by final
regulations or withdrawn. Id. The temporary regulations in this
case have been neither replaced nor withdrawn, so we rely on
them.
7 Of course, petitioners did not allege that there was an
overpayment with respect to tax year 1990, so there was no
apparent need for such a stipulation.
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