Tsutomu Tedokon - Page 9




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          this case, the U.S. Court of Appeals for the Ninth Circuit                  
          decided Omohundro v. United States, 300 F.3d 1065 (9th Cir.                 
          2002), in which the court announced that “we are no longer bound            
          by Miller.  Accordingly, we hold that under I.R.C. sec. 6511(a),            
          a taxpayer’s claim for credit or a refund is timely if it is                
          filed within three years from the date his income tax return is             
          filed, regardless of when the return is filed.”  Id. at 1069.               
               In Miller, the Court of Appeals for the Ninth Circuit had              
          held that a taxpayer must file a return within 2 years of payment           
          of the taxes to recover a refund or credit; otherwise, no claim             
          could ever be finally barred by the 2-year-after-payment clause             
          of section 6511(a).  Also, the court stated in Omohundro that its           
          construction of section 6511(a) in Miller was necessary to                  
          prevent forum shopping under a version of section 6512(b)(3) no             
          longer in effect.                                                           
               In Omohundro v. United States, supra, the court further                
          stated that “In deciding Miller, we did not consider Revenue                
          Ruling 76-511 which was directly on point and in effect at the              
          time.”  Id. at 1067.                                                        
               After Miller v. United States, supra, was decided in 1994,             
          the Supreme Court’s decision in United States v. Mead Corp., 533            
          U.S. 218 (2001), intervened.  The court in Omohundro observed:              
                    In United States v. Mead Corp., the Supreme Court                 
               held that an administrative agency’s interpretation of                 
               a statute contained in an informal rulemaking must be                  
               accorded the level of deference set forth in Skidmore                  





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