Janet Schoene - Page 4

                                        - 3 -                                         
                                             Additions to Tax                         
               Deficiency          Sec. 6651(a)(1)     Sec. 6651(a)(2)                
               $11,358             $528.07             $481.13                        
               Petitioner timely filed a petition with this Court                     
          contesting the deficiency determined in the notice and claiming             
          an overpayment of $7,733.  She also apparently submitted a return           
          to respondent seeking a refund of $7,733.  Respondent concedes              
          that the return submitted is correct but contends that petitioner           
          is time barred from recovering the $7,733 overpayment by                    
          operation of sections 6511 and 6512(b).                                     
               We generally have jurisdiction to determine the existence              
          and amount of any overpayment of tax to be credited or refunded             
          for years that are properly before us.  See sec. 6512(b)(1).                
          For the taxable year 1994, section 6512(b)(3) (incorporating by             
          reference section 6511(b)(2)), however, provides that a claim for           
          credit or refund of an overpayment of tax must be filed by the              
          taxpayer within 3 years from the time the return was filed or               
          within 2 years from the time the tax was paid.  If no return is             
          filed, the claim must be filed within 2 years from the time the             
          tax was paid.  See Commissioner v. Lundy, 516 U.S. 235, 253                 
               In Commissioner v. Lundy, supra, the Supreme Court held that           
          where a taxpayer does not file a return prior to the notice of              
          deficiency being mailed, the Tax Court has jurisdiction to award            
          a refund only as to those taxes paid during the 2 years preceding           

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Last modified: May 25, 2011