Bruce L. Brosi - Page 6




                                        - 6 -                                         
          provides:                                                                   
                    SEC. 6512(b)(3).  Limit on amount of credit or                    
               refund.--No such credit or refund shall be allowed or                  
               made of any portion of the tax unless the Tax Court                    
               determines as part of its decision that such portion                   
               was paid--                                                             
                         *     *     *     *     *     *     *                        
                         (B) within the period which would be                         
                    applicable under section 6511(b)(2), (c), or (d),                 
                    if on the date of the mailing of the notice of                    
                    deficiency a claim had been filed (whether or not                 
                    filed)* * *                                                       
          Although “not elegant,” the statutory scheme is straightforward.            
          Commissioner v. Lundy, 516 U.S. 235, 242 (1996).  “[A]ll that               
          matters for the proper application of �6512(b)(3)(B) is that the            
          ‘claim’ contemplated in that section be treated as the only                 
          mechanism for determining whether a taxpayer can recover a                  
          refund.”  Id. at 242.  Thus, the statute defines the limitation             
          relevant here, by incorporating the “look-back” provisions found            
          in section 6511(b) and “directs the Tax Court to determine the              
          applicable period by inquiring into the timeliness of a                     
          hypothetical claim for refund filed ‘on the date of the mailing             
          of the notice of deficiency.’”3  Id. at 242.  “[A] taxpayer who             


               3Generally, sec. 6511 dictates the period in which a                   
          taxpayer must claim a refund or credit for overpaid taxes.  The             
          taxpayer must file a claim for refund “within 3 years from the              
          time the return was filed or 2 years from the time the tax was              
          paid, whichever of such periods expires the later, or if no                 
          return was filed by the taxpayer, within 2 years from the time              
          the tax was paid.”  Sec. 6511(a) and (b)(1); see Commissioner v.            
          Lundy, 516 U.S. 235, 240 (1996).                                            





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: May 25, 2011