Perry C. Krape - Page 6




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               As it relates to the case before us, section 6512(b)(3)(C)             
          provides that the Court may order refund or credit of the                   
          overpayment if the claim had not been disallowed before the                 
          notice of deficiency was mailed, or if the claim had been                   
          disallowed before the notice of deficiency was mailed and a                 
          timely suit for refund could have been commenced as of the date             
          the notice of deficiency was mailed.  Sec. 6512(b)(3)(C)(i) and             
          (ii).  Petitioner contends that he made an administrative claim             
          for refund that was either not disallowed, or if it was                     
          disallowed, he could have commenced a timely suit for refund as             
          of the date the notice of deficiency was mailed.                            
               If, as petitioner asserts, the delinquent return constitutes           
          a claim for refund, the Court would have jurisdiction to order a            
          refund or credit of the overpayment at issue.  As noted supra,              
          petitioner filed the delinquent return on October 24, 2002.                 
          Regardless of whether the 3-year or the 2-year “look-back” period           
          would apply, petitioner’s overpayment on April 15, 2001, falls              
          within the “look-back” period under petitioner’s theory, and the            
          Court would have jurisdiction to order refund or credit of the              
          overpayment.                                                                
               Under certain circumstances, a properly executed income tax            
          return may constitute a claim for refund or credit.  Section                
          301.6402-3(a)(5), Proced. & Admin. Regs., provides:                         








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