Helen S. Healer - Page 9

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               petitioner’s circumstance were entitled to recover                     
               refunds in the Tax Court under section 6512(b)(3)(B) as                
               the statute stood before the 1997 amendment.  Congress                 
               clearly did not cover taxpayers in petitioner’s circum-                
               stance under the amendment and yet Congress could not                  
               possibly have intended to give a 3-year look-back                      
               period only to late filers and nonfilers who never                     
               obtained an extension of time to file the return.  The                 
               conclusion appears inescapable that Congress thought                   
               the statute in its pre-1997 form authorized refunds to                 
               taxpayers in petitioner’s position.                                    
                    Although this court is not at liberty to apply the                
               paragraph added in 1997 to the 1996 tax year, a provi-                 
               sion which in all events is inapplicable to petitioner,                
               this court surely is authorized to consider the 1997                   
               legislative history, that is, the practical interpreta-                
               tion Congress made of the preexisting statute at that                  
               time.  That legislative history compels a different                    
               construction of section 6512(b)(3)(B) than the one                     
               reached in Lundy.                                                      
                    * * * In Commissioner v. Lundy, supra, 516 U.S.                   
               235, 248 (1996), the Court rejected a comparable con-                  
               struction in the course of reaching what it considered                 
               to be a superior interpretation.  The Court, however,                  
               did not have the 1997 legislative history to consider                  
               in reaching its conclusion.                                            
               The short answer to petitioner’s argument regarding amended            
          section 6512(b)(3) and its legislative history is that the                  
          Supreme Court held in Commissioner v. Lundy, supra, that the 2-             
          year look-back period in section 6511(b)(2)(B) applies in a                 
          situation such as that presented in the instant case.  Neither              
          amended section 6512(b)(3), which petitioner concedes does not              
          apply to her tax year 1996, nor its legislative history permits             
          us to deviate from that holding in the present case.  We reject             
          petitioner’s position that the 3-year look-back period in section           
          6511(b)(2)(A) applies in the instant case.                                  

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