Diana T. Visco - Page 12




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          existed in 1992.  When the checks were delivered to petitioner in           
          December of 1992, they were payable only to petitioner, and none            
          of the documents and orders involved in the various proceedings             
          contained any indication of any condition or limitation imposed             
          upon petitioner’s receipt of the checks.  Petitioner had                    
          unfettered control over the checks in 1992 but returned them.               
          Thus, the money was not restricted, and petitioner’s failure to             
          benefit from the amounts represented by the checks resulted from            
          the exercise of her own choice.  Therefore, we conclude that                
          petitioner constructively received the backpay and interest on              
          backpay in 1992.12                                                          


               12Petitioner had $31,042.86 in Federal income taxes withheld           
          from the two checks issued to her for backpay and interest on               
          backpay.  Assuming arguendo that petitioner was correct and that            
          she did not constructively receive the checks for backpay and               
          interest on backpay in 1992, petitioner would have overpaid her             
          1992 Federal income taxes.                                                  
               The Tax Court has jurisdiction to award to a taxpayer a                
          refund of overpaid taxes if the Commissioner issued the notice of           
          deficiency within the later of 2 years after the tax was paid or            
          3 years after the return was filed.  See secs. 6511(b)(2)(A) and            
          (B) and 6512(b)(3)(B); Commissioner v. Lundy, 516 U.S. 235,                 
          241-242 (1996).  The 2-year period applies (and the 3-year period           
          does not) if the taxpayer did not file his or her income tax                
          return before the Commissioner issued a notice of deficiency for            
          that year.  See secs. 6511(b)(2)(B) and 6512(b)(3); Commissioner            
          v. Lundy, supra at 243.  Petitioner did not file a tax return for           
          1992.                                                                       
               Respondent mailed the notice of deficiency on Aug. 28, 1997.           
          We may order a refund of any overpayments petitioner made within            
          the 2 years preceding Aug. 28, 1997.  Petitioner’s payments of              
          taxes for 1992 were made by the district through withholding.               
                                                             (continued...)           





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