James B. and Joan E. Murtaugh - Page 14

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          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          regulations or withdrawn.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          case have been neither replaced nor withdrawn, so we rely on                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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