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amount of the overpayment must not exceed the portion of the tax
paid within the period, immediately preceding the filing of the
claim, equal to 3 years plus the period of any extension of time
for filing the return.
In Miller v. United States, 38 F.3d 473 (9th Cir. 1994), the
U.S. Court of Appeals for the Ninth Circuit, the court to which
this case would normally be appealed, held that section 6511(a)
provides the taxpayer with “the right to file a claim up to three
years after the return only where that return is filed within two
years of payment of the taxes.” Miller v. United States, supra
at 476. In contrast, Rev. Rul. 76-511, 1976-2 C.B. 428, applied
the 3-year filing deadline of section 6511(a) even though the
taxpayer filed the return more than 2 years after payment of the
tax.
Other Courts of Appeals addressing this issue followed the
interpretation of section 6511(a) announced in Rev. Rul. 76-511.
For example, in Weisbart v. U.S. Dept. of Treasury, 222 F.3d 93
(2d Cir. 2000), the U.S. Court of Appeals for the Second Circuit
declined to follow Miller, and applied the 3-year filing deadline
even though the return was filed more than 2 years after the tax
was paid. See also Richards v. Commissioner, 37 F.3d 587, 589
(10th Cir. 1994), affg. T.C. Memo. 1993-102; Oropallo v. United
States, 994 F.2d 25, 26-27 (1st Cir. 1993).
Subsequent to the expiration of the briefing schedule in
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