Cite as: 516 U. S. 235 (1996)
Thomas, J., dissenting
had meant to say what the majority thinks it said, it could have added the words "no other claim is to be given effect." Or it might have directed the Tax Court to determine if the tax was paid "within the period which would be applicable under § 6511(b)(2) with respect to a claim filed on the date the notice of deficiency was mailed." Cf. n. 6, infra (26 U. S. C. § 6512(b)(3)(C) uses the phrase "period which would be applicable under section 6511(b)(2) . . . in respect of [a] claim" when denoting the period applicable to a particular claim).
The Commissioner notes that § 6512(b)(3)(C) provides for the situation in which "a refund claim had actually been filed 'before the date of the mailing of the notice of deficiency' " and argues that § 6512(b) does not provide any "additional" jurisdiction in the Tax Court for refund claims made "after" the notice of deficiency is issued. Reply Brief for Petitioner 3-4 (emphasis in original).6 But Lundy does not argue for "additional" jurisdiction; he asks only that § 6512(b)(3)(B), which appears to incorporate the look-back periods applicable in district court, not be construed as cutting off in the Tax Court a right to obtain a refund that he would have had in district court.
The Commissioner is perhaps making an expressio unius argument based upon the existence of § 6512(b)(3)(C). It is true that my interpretation of § 6512(b)(3)(B)—which permits a taxpayer to rely upon real claims as well as the deemed claim—might render § 6512(b)(3)(C) unnecessary.
(the fact that the taxpayer has filed a real return that also contains an accurate claim less than three years after the tax was paid).
6 Section 6512(b)(3)(C) provides that the Tax Court may award tax paid "within the period which would be applicable under section 6511(b)(2) . . . in respect of any claim for refund filed within the applicable period specified in section 6511 and before the date of the mailing of the notice of deficiency," provided that the claim was still viable at the time the notice of deficiency was mailed.
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