- 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 In general temporary regulations remain in effect until replaced by final regulations or withdrawn.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 The temporary regulations in this case have been neither replaced nor withdrawn, so we rely on them. 7 Of course, petitioners did not allege that there was an overpayment with respect to tax year 1990, so there was no apparent need for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.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: May 25, 2011