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Section 6511(b)(2) is entitled “Limit On Amount Of Credit Or
Refund”. In a case such as the present one, where the date of
the mailing of the notice of deficiency (August 22, 2005) is
beyond the third year after the due date for filing the 2001
return (April 15, 2002) and no return was filed by the taxpayer
before that date (i.e., August 22, 2005), section 6511(b)(2)(B)
applies to limit the amount of any refund or credit that may be
made or allowed. See Commissioner v. Lundy, 516 U.S. 235 (1996);
Healer v. Commissioner, 115 T.C. 316, 319-320 (2000); cf. sec.
6512(b)(3), flush language; Zarky v. Commissioner, 123 T.C. 132
(2004). Section 6511(b)(2)(B) provides that “the amount of the
credit or refund shall not exceed the portion of the tax paid
during the 2 years immediately preceding the filing of the
claim.” Therefore, because petitioner’s claim for refund is
deemed to have been filed on August 22, 2005, see sec.
6512(b)(3)(B), then only tax paid during the immediately-
preceding 2-year period may be refunded (or credited).
In the present case, petitioner paid no income tax other
than through withholding on his wages. Income tax withheld by a
taxpayer’s employer is deemed to have been paid by the taxpayer
on April 15 of the year immediately following the calendar year
for which the tax was withheld. Sec. 6513(b)(1). Therefore,
petitioner is deemed to have paid the tax for which he seeks a
refund on April 15, 2002. But, because petitioner did not pay
any income tax during the 2 years immediately preceding August
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