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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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