256
Thomas, J., dissenting
cases, the taxpayer may only recover a refund of tax that was paid within the three years prior to his claim, yet the 3-year statute of limitation on assessments is triggered by the filing of the return.3 These facts suggest that in enacting § 6511, Congress quite likely was simply not thinking about the effects on delinquent filers. Or, to put it another way, Congress may have had no intent regarding whether §§ 6511(a) and (b) would permit a taxpayer to take advantage of a 3-year look-back period where the taxpayer's return is not filed on time, and where the 3-year period thus cannot correlate with the Government's assessment period.
Nevertheless, in light of the language of § 6511(a), the absence of any reason to think that Congress affirmatively intended to prevent taxpayers who file their returns more than two years late (but less than three years late) from collecting refunds, and the Service's 20-year interpretation of § 6511 in its Revenue Ruling, I would interpret § 6511 in conformity with the Revenue Ruling.
II
Section 6512(b), rather than § 6511, directly governs the amount of a tax refund that may be awarded in the Tax Court. The most striking aspect of § 6512(b)(3)(B), however, is that it incorporates the look-back provisions of § 6511—it directs the Tax Court to determine what portion of tax was paid "within the period which would be applicable under section 6511(b)(2)." To my mind, then, the question is whether the additional language in § 6512(b)(3)(B) (that directing the Tax Court to pretend that "on the date of the mailing of the notice of deficiency a claim had been filed"), the statute's
3 For example, if the taxpayer's return is due on April 15, 1990, he is deemed to pay on that date any tax previously withheld. If he files his return on April 16, 1990, he must still file his claim by April 15, 1993, but the Government will have until April 16, 1993, for assessment. The more delinquent the return is, the greater the disparity between the taxpayer's time for filing a claim and the Government's time for assessment.
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