- 6 - 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 * * *Page: Previous 1 2 3 4 5 6 7 8 9 10 NextLast modified: November 10, 2007