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v. Commissioner, docket No. 5952-94, had reached the basis of
settlement. At that time, the period in which to file a claim
for refund of Colorado income taxes was still open. We recognize
that, in spite of the settlement agreement, respondent did not
approve petitioner's refund request until late in 1997. However,
nothing in the Colorado tax statutes prevented petitioner from
filing a claim for refund of Colorado income taxes in advance of
that approval. Indeed, had petitioner filed such a refund claim,
petitioner would have preserved the right to sue for a refund
pursuant to section 39-21-108(1)(a) of the Colorado Revised
Statutes (1998), which provides:
No suit for refund may be commenced before the
expiration of six months after the date of filing the
claim for refund required under this section unless the
executive director of the department of revenue renders
a decision thereon within that time, nor after the
expiration of two years after the date of mailing * * *
of a notice of disallowance of the part of the claim to
which the suit relates. * * *
Thus, under the Colorado statutes of limitations, petitioner
could have filed a timely claim for refund of that portion of
Colorado income tax related to the reduction in Federal taxable
income. The calculation of Colorado income tax is dependent upon
the amount of Federal taxable income, and decedent's Colorado
income tax would be reduced proportionately. Petitioner's
unexplained failure to seek a refund of Colorado income tax does
not prevent the correct determination of the amount of the claim.
We hold that the deduction for decedent's Colorado income tax
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