Helen S. Healer - Page 12

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          holding, we rely not only on section 6501(b)(3)3 and the                    

               3Sec. 6501(b)(3) provides:                                             
                    (3) Return executed by secretary.–-Notwithstanding                
               the provisions of paragraph (2) of section 6020(b), the                
               execution of a return by the Secretary pursuant to the                 
               authority conferred by such section shall not start the                
               running of the period of limitations on assessment and                 
               Although sec. 6511 does not expressly provide a rule similar           
          to sec. 6501(b)(3) for purposes of sec. 6511, we attach no                  
          significance to that omission in considering whether a substitute           
          for return prepared by the Commissioner pursuant to sec.                    
          6020(b)(1) constitutes a return filed by the taxpayer for pur-              
          poses of sec. 6511.  That is because of the obvious interplay               
          between secs. 6501 and 6511.  In this connection, the following             
          statements of the Supreme Court in Commissioner v. Lundy, 516               
          U.S. 235, 244-245 (1996), are instructive:                                  
               in the case where the taxpayer has filed a timely tax                  
               return and the IRS is claiming a deficiency in taxes                   
               from that return, the interplay of �� 6512(b)(3)(B) and                
               6511(b)(2) generally ensures that the taxpayer can                     
               obtain a refund of any taxes against which the IRS is                  
               asserting a deficiency.  In most cases, the notice of                  
               deficiency must be mailed within three years from the                  
               date the tax return is filed.  See 26 U.S.C. �� 6501(a)                
               * * *.  Therefore, if the taxpayer has already filed a                 
               return (albeit perhaps a faulty one), any claim filed                  
               “on the date of the mailing of the notice of defi-                     
               ciency” would necessarily be filed within three years                  
               from the date the return is filed.  In these circum-                   
               stances, the applicable look-back period under �                       
               6512(b)(3)(B) would be the 3-year period defined in �                  
               6511(b)(2)(A) * * *.                                                   
                    Therefore, in the case of a taxpayer who files a                  
               timely tax return, � 6512(b)(3)(B) usually operates to                 
               toll the filing period that might otherwise deprive the                
               taxpayer of the opportunity to seek a refund * * *.                    
                    Section 6512(b)(3)(B) treats delinquent filers of                 
               income tax returns less charitably.  Whereas timely                    
               filers are virtually assured the opportunity to seek a                 

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