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the taxpayer and (2) the timely filing of a petition by the
taxpayer.5 Secs. 6212, 6213, 7502; Rule 13(a), (c); Frieling v.
Commissioner, 81 T.C. 42, 46 (1983). In the present case,
respondent sent petitioner a valid notice of deficiency on August
22, 2005, and petitioner timely filed a petition for
redetermination on October 17, 2005. Thus, the jurisdictional
prerequisites are satisfied, and the Court has jurisdiction in
this deficiency proceeding.
Recharacterization of Respondent’s Motion
In view of the filing of petitioner’s delinquent return and
respondent’s acceptance thereof, as well as the assessment of the
tax reported on that return, respondent concedes that there is no
deficiency in income tax nor any addition to tax due from
petitioner for 2001. However, respondent contends that refund or
credit of the $1,354 overpayment is barred by the statute of
limitations.
Because this is an action for the redetermination of a
deficiency over which we have jurisdiction, we have pendant
jurisdiction to determine the amount of any overpayment. Sec.
6512(b)(1). In so doing, we necessarily consider whether refund
5 The validity of a notice of deficiency does not turn on
the substantive merits of the Commissioner’s determination; i.e.,
the correctness of that determination. Rather, validity
contemplates that the Commissioner did, in fact, make a
determination in a notice of deficiency that is mailed to the
taxpayer at the taxpayer’s last known address.
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