262
Thomas, J., dissenting
U. S. C. § 322(d), the predecessor of § 6512(b), in 1942, the House Report explained:
"In order to give the taxpayer the privilege to claim an overpayment before the [Tax Court] by such amendments to his petitions as may be allowed under the rules of the [Tax Court], without the period of limitations running against the refund of such overpayment after the notice of deficiency is mailed, [§ 322(d) is amended] to provide that the period of limitations which determines the portion of the tax which may be credited or refunded is measured from the date the notice of deficiency is mailed, rather than from the date the petition is filed." H. R. Rep. No. 2333, 77th Cong., 2d Sess., 121 (1942).8
Because § 6512(b)(3)(B) incorporates the look-back periods of § 6511(b) and because it appears that the variance in the Tax Court statute was meant to be more protective of the taxpayer litigating in the Tax Court in certain circumstances, I would hold that Lundy may recover his refund.
III
Lundy argues that he was no more negligent for failing to file his return within three years than he was for failing to file it within two years, and that it would be irrational for Congress to forfeit Lundy's refund simply because the Service "beat him to the punch" in sending him a deficiency notice. I disagree. Allowing a delinquent taxpayer a shorter period of time within which to file his claim would not be
8 The majority reads the Fourth Circuit's opinion as barring a taxpayer's reliance upon the deemed claim in meeting § 6511's requirements to obtain the 3-year look-back period (and as thus preventing a taxpayer who filed a timely return but filed a real claim more than three years later from recovering his refund in Tax Court). Ante, at 247-248. If that was indeed the Fourth Circuit's ruling, then it clearly was incorrect. Under my interpretation, either the deemed claim or a real claim can enable a taxpayer to recover his refund in the Tax Court.
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