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With the United States Tax Court: JUL 30 2001".
On or about June 13, 2001, the United States moved to
dismiss petitioners’ refund action for lack of jurisdiction. On
June 22, 2001, an Order and Findings and Recommendation was filed
by a United States magistrate judge recommending that
petitioners’ refund action be dismissed for lack of jurisdiction.
The Order and Findings and Recommendation concluded that the
District Court lacked jurisdiction on the ground that petitioners
could not be deemed to have paid the taxes that were the subject
of their refund claim inasmuch as “approval of a credit from
overpayment by the Internal Revenue Service is a prerequisite to
filing suit for a refund under section 7422". See 26 U.S.C. sec.
7422(d) (1994). On January 31, 2002, the District Court filed an
Order dismissing petitioners’ refund action for lack of
jurisdiction based on the prior Order and Findings and
Recommendation of the magistrate judge.
On February 28, 2002, petitioners filed a petition for
redetermination with this Court contesting the notice of
deficiency dated May 1, 2001. The envelope in which the petition
was mailed to the Court bears a U.S. Postal Service postmark date
of February 12, 2002, and postmark place of Sacramento,
California.
As indicated, respondent filed a motion to dismiss for lack
of jurisdiction on the ground that the petition was not timely
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