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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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Last modified: November 10, 2007