Ronald W. Stewart - Page 5




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          recently interpreted this provision.  In Commissioner v. Lundy,             
          516 U.S. 235 (1996), the Court stated:                                      
                    The analysis dictated by section 6512(b)(3)(B) is                 
               not elegant, but it is straightforward.  * * * all that                
               matters for the proper application of section                          
               6512(b)(3)(B) is that the "claim" contemplated in that                 
               section be treated as the only mechanism for                           
               determining whether a taxpayer can recover a refund.                   
               Section 6512(b)(3)(B) defines the look-back period that                
               applies in Tax Court by incorporating the look-back                    
               provisions from section 6511(b)(2), and directs the Tax                
               Court to determine the applicable period by inquiring                  
               into the timeliness of a hypothetical claim for refund                 
               filed "on the date of the mailing of the notice of                     
               deficiency."                                                           
                    To this end, section 6512(b)(3)(B) directs the Tax                
               Court's attention to section 6511(b)(2), which in turn                 
               instructs the court to apply either a 3-year or a 2-                   
               year look-back period.  See sections 6511(b)(2)(A) and                 
               (B) (incorporating by reference section 6511(a)); * * *                
               To decide which of these look-back periods to apply,                   
               the Tax Court must consult the filing provisions of                    
               section 6511(a) and ask whether the claim described by                 
               section 6512(b)(3)(B)--a claim filed "on the date of                   
               the mailing of the notice of deficiency"--would be                     
               filed "within 3 years from the time the return was                     
               filed."  See section 6511(b)(2)(A) (incorporating by                   
               reference section 6511(a)).  If a claim filed on the                   
               date of the mailing of the notice of deficiency would                  
               be filed within that 3-year period, then the look-back                 

               3(...continued)                                                        
                    any claim for refund filed within the applicable period           
                    specified in section 6511 and before the date of the              
                    mailing of the notice of deficiency--                             
                              (i) which had not been disallowed before that           
                         date,                                                        
                              (ii) which had been disallowed before that              
                         date and in respect of which a timely suit for               
                         refund could have been commenced as of that date,            
                         or                                                           
                              (iii) in respect of which a suit for refund             
                         had been commenced before that date and within the           
                         period specified in section 6532.                            




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