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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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