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period is also three years and the Tax Court has
jurisdiction to award a refund of any taxes paid within
three years prior to the date of the mailing of the
notice of deficiency. Secs. 6511(b)(2)(A) and
6512(b)(3)(B). If the claim would not be filed within
that 3-year period, then the period for awarding a
refund is only two years. Secs. 6511(b)(2)(B) and
6512(b)(3)(B).
In this case, we must determine which of these two
look-back periods to apply when the taxpayer fails to
file a tax return when it is due, and the Commissioner
mails the taxpayer a notice of deficiency before the
taxpayer gets around to filing a late return. * * *
We think the proper application of section
6512(b)(3)(B) * * * requires that a 2-year look-back
period be applied. [Commissioner v. Lundy, supra at
242-243.]
In 1993, petitioner had tax withheld from his wages in the
total amount of $18,457. This amount is deemed to have been paid
on April 15, 1994. Sec. 6513(a). Respondent has conceded that
petitioner's tax liability is $15,594, the amount shown by
petitioner on his 1993 return. This results in an overpayment of
$2,863. Most of this overpayment ($2,642) is time barred because
the date on which the notice of deficiency was mailed, the
hypothetical claim for refund, is more than 2 years from the date
(April 15, 1994) the tax was deemed paid. Secs. 6511(b)(2)(B),
6512, 6513(a); Commissioner v. Lundy, supra; Galuska v.
Commissioner, 5 F.3d 195 (7th Cir. 1993), affg. 98 T.C. 661
(1992); Allen v. Commissioner, 99 T.C. 475 (1992), affd. without
published opinion 23 F.3d 406 (6th Cir. 1994). The portion of
the claim attributable to a capital loss carryforward is not so
limited. The amount of carryforward claimed in petitioner's 1993
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