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herein.1 Petitioners argue that section 6512(b) and Commissioner
v. Lundy, 516 U.S. 235 (1996), have no bearing here because the
Commissioner agrees that petitioners are entitled to a refund for
1990.
We agree with respondent. Petitioners must demonstrate that
their claim for refund was timely. Flagg v. Commissioner,
T.C. Memo. 1997-297. Although section 6512(b)(1) bestows
jurisdiction on this Court to determine the existence and amount
of any overpayment of tax to be refunded for a year before us,
section 6512(b)(3)(B) prohibits the Court from awarding a refund
unless we determine that the refunded amount was paid
within the period which would be applicable under
section 6511(b)(2) * * * or (d), if on the date of the
mailing of the notice of deficiency a claim had been
filed (whether or not filed) stating the grounds upon
which the Tax Court finds that there is an overpayment
* * *
See also Commissioner v. Lundy, supra at 241-242.2 The relevant
provision of section 6511(b)(2) provides that when a claim for
refund is not filed within the 3-year period of section 6511(a),
the amount of the refund may not exceed the amount of tax paid
1 Petitioners' brief does not address any of the other years
in issue.
2 Contrary to petitioners' argument, this case is controlled
by the Commissioner v. Lundy, 516 U.S. 235 (1996) case. Although
sec. 1282(a) of the Taxpayer Relief Act of 1997, Pub. L. 105-34,
111 Stat. 788, 1037, recently amended sec. 6512(b)(3) in
response to the result in Lundy case, this amendment is
inapplicable to the instant proceeding because the amendment is
effective with claims for credit or refund for taxable years
ending after Aug. 5, 1997.
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