Richard Nichols and Lisa Nichols - Page 3

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          collection of a specific deficiency is not the same as agreeing             
          that the deficiency agreed to is accurate.  A taxpayer who signs            
          the form may later claim a refund after paying.  But he gives up            
          the right to come to Tax Court:  “If you later file a claim and             
          the Service disallows it, you may file suit for refund in a                 
          district court or in the United States Claims Court, but you may            
          not file a petition with the United States Tax Court.”  Just to             
          make sure that point is clear, the form also states--directly               
          above the signature line--“I understand that by signing this                
          waiver, I will not be able to contest these years in the United             
          States Tax Court, unless additional deficiencies are determined             
          for these years.”                                                           
               The Commissioner assessed the tax as agreed, but the                   
          Nicholses never paid because they learned later in 2001 that one            
          of their businesses had produced net operating losses (NOLs) for            
          the tax years 1995 and 1997.  This spurred them to file an                  
          amended 1994 tax return (Form 1040X) in December 2002, claiming             
          these NOLs as deductions that they could carry back to the 1994             
          tax year.  The IRS treated their 1040X as a refund claim and                
          rejected it as untimely.2  The filing and rejection of a Form               
          1040X is often the prelude to a refund action, but the Nicholses            


               2 The rejection letter stated that no credit or refund would           
          be allowed for a claim filed more than three years after the due            
          date of the returns which established the NOLs; i.e., the 1995              
          and 1997 tax returns.                                                       





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