J. Leslie James - Page 11




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               We conclude that petitioner did not file his 1993 return               
          before March 24, 1997.3                                                     
          C.   Whether We May Award Petitioner a Refund for 1993                      
               Petitioner filed his Federal income tax return for 1993                
          after respondent issued a notice of deficiency for that year.               
               Petitioner last paid tax for 1993 on April 15, 1994, when he           
          paid $4,727 with his request for an automatic extension of time             
          to file.  Withheld income taxes are deemed paid on April 15 of              
          the year following the taxable year.  Sec. 6513(b)(1).  Estimated           
          income taxes are deemed paid on the last day prescribed to file             
          the return without regard to extensions.  Sec. 6513(b)(2).                  
          Petitioner paid or is deemed to have paid income tax for 1993 on            
          April 15, 1994, more than 2 years before March 27, 1997, when               
          respondent issued the notice of deficiency for 1993.  Thus, we              
          lack jurisdiction to award petitioner a refund of his overpayment           
          for 1993.  Commissioner v. Lundy, 516 U.S. at 243.                          
               Petitioner indicates that IRS Publication 556, Examination             
          of Returns, Appeal Rights, and Claims for Refund (dated Rev. May            
          1997), did not mention the 2-year period referred to in                     
          Commissioner v. Lundy, supra.  However, that does not affect our            
          conclusion because IRS publications are not legal authority.  See           
          Zimmerman v. Commissioner, 71 T.C. 367, 371 (1978), affd. without           


               3 In light of our conclusion, we need not decide                       
          respondent's contention that sec. 7502 is the exclusive means to            
          prove timely mailing.                                                       




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