Patrick T. McGuinness - Page 7




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          or credit may be barred by the statute of limitations.  Cf. sec.            
          7459(e).  Because the statute of limitations constitutes an                 
          avoidance or a defense, see Day v. McDonough, 547 U.S. 198,    ,            
          126 S.Ct. 1675, 1681 (2006) (“A statute of limitations defense *            
          * * is not ‘jurisdictional’”); see also Kontrick v. Ryan, 540               
          U.S. 443 (2004), we shall recharacterize respondent’s Motion To             
          Dismiss For Lack Of Jurisdiction as a motion for summary judgment           
          and proceed accordingly.                                                    
          Allowance of Refund or Credit                                               
               As previously stated, section 6512(b)(1) authorizes us to              
          determine the amount of the overpayment of tax for 2001 that is             
          to be refunded or credited to petitioner.  However, section                 
          6512(b)(3) imposes a limit on the amount of any overpayment that            
          may be credited or refunded.  As relevant herein, section                   
          6512(b)(3) provides as follows:                                             
               SEC. 6512(b). Overpayment Determined by Tax Court.--                   
                    *     *     *     *     *     *     *                             
                    (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) * * *, if                     
                    on the date of the mailing of the notice of                       
                    deficiency a claim had been filed (whether or                     
                    not filed) stating the grounds upon which the                     
                    Tax Court finds that there is an overpayment                      
                    * * *                                                             






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