- 12 - 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...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
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