258
Thomas, J., dissenting
Section 6512(b)(3)(B), does not, however, require the Tax Court to limit its consideration to events that occurred on or before the notice of deficiency was mailed. Indeed, if anything, the variance in tenses ("would be applicable . . . if . . . a claim had been filed") suggests that the Tax Court should determine the proper look-back period in the same way that courts normally determine the applicability of statutes of limitation—with whatever information it has at the time that it rules.
Nor does the language of § 6512(b)(3)(B) make clear any intent that the deemed claim of § 6512(b)(3)(B) be treated as the only mechanism for determining whether a taxpayer can recover a refund. The statute incorporates the look-back periods of § 6511 and then explicitly tells the Tax Court that, in applying § 6511, it should pretend that an event happened "whether or not" it actually did happen; 4 it does not tell the Tax Court to ignore events that did happen.5 If Congress
4 Lundy argues that his actual claim superseded any claim "deemed" by § 6512(b)(3)(B) to have been filed on the date the notice of deficiency was mailed, and there is no reason to believe that a claim that would invoke the 3-year look-back period could not supersede a premature claim (i. e., a claim that preceded a return) and thereby give the claimant the benefit of the full 3-year look-back period. Indeed, the Commissioner apparently agreed at oral argument that a taxpayer who files a nonreturn claim before filing a return, then actually files a district court suit, then dismisses that suit, then files a return containing an accurate claim, and finally files another suit in district court asserting this ground would be in the same position as one who had never filed the first premature claim. That is, assuming that Revenue Ruling 76-511 is a correct interpretation of a taxpayer's right to recover in district court, the taxpayer in this hypothetical would be permitted to recover if the return was filed within three years from the time the tax was paid. See Tr. of Oral Arg. 25-26.
5 I think it odd that the majority, like the Commissioner, reads § 6512(b)(3)(B) as taking into account one real fact that the subsection does not explicitly tell the courts to consider in determining the look-back period (the fact that no real return had been filed at the time the notice of deficiency was mailed), but as not taking into account another real fact
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