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whether the taxpayer is entitled to retain the tentative refund
necessarily happens after the refund payment has been made. See
sec. 6501(k) (extending the period of limitations for the
carryback year where amounts have been refunded under section
6411).
When it turns out (or respondent determines after a more
leisurely examination) that a taxpayer is not entitled to retain
a tentative refund, respondent has three remedies to recover the
tentative refund. “Any one or more of the three available
methods may be used to recover any amount which was improperly
applied, credited, or refunded in respect of an application for a
tentative carryback adjustment.” Sec. 301.6213-1(b)(2)(ii),
Proced. & Admin. Regs.; see Baldwin v. Commissioner, 97 T.C. 704,
710 (1991); Pesch v. Commissioner, supra at 117; Midland
Mortgage Co. v. Commissioner, 73 T.C. 902, 905-906 (1980); Fine
v. Commissioner, 70 T.C. 684, 687-688 (1978). These three
methods are: (1) Assessment of the deficiency attributable to a
tentative carryback adjustment as if due to a mathematical error
under section 6213(b)(1); (2) civil action under section 7405; or
(3) notice of deficiency under section 6212. See Baldwin v.
Commissioner, supra at 710. The selection of the particular
remedy is within respondent’s discretion. Pesch v. Commissioner,
supra at 118.
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