192

RESEARCH CORPORATION, PETITIONER v. COMMISSIONER OF

INTERNAL REVENUE, RESPONDENT

Docket No. 9458–10. Filed February 29, 2012. 

P is a corporation exempt from tax under I.R.C. sec. 

501(c)(3) since the inception of that rule in 1954. P had paid 

unrelated business income tax for 1952, 1953, 1954, 2000, and 

2001. In 1961 P established an employee pension plan. Upon 

termination of the plan in 2002, a direct transfer of 

$1,470,465 was made from the plan to a replacement plan 

pursuant to I.R.C. sec. 4980(d). Thereafter, P received a reversion of $4,411,395 in cash and property. P reported a reversion amount of $14,055 and paid $2,811 as excise tax pursuant to I.R.C. sec. 4980(a). I.R.C. sec. 4980(a) imposes an excise 

tax of 20% of the amount of any employer reversion from a 

qualified plan. Pursuant to I.R.C. sec. 4980(c)(1), ‘‘The term 

‘qualified plan’ means any plan meeting the requirements of 

section 401(a) or 403(a), other than—(A) a plan maintained by 

an employer if such employer has, at all times, been exempt 

from tax under subtitle A’’. P argues it has, at all times, been 

exempt from tax under I.R.C. subtit. A. Therefore, the reversion was not received from a qualified plan and it is exempt 

from excise tax. R argues that P was taxed on unrelated business income and has not, at all times, been exempt from tax 

under I.R.C. subtit. A. Therefore, the reversion is from a 

qualified plan and is subject to excise tax under I.R.C. sec. 

4980(a). Held: P has, at all times, been exempt from tax under 

I.R.C. subtit. A and is not liable for the excise tax imposed by 

I.R.C. sec. 4980(a). Held, further: We lack jurisdiction to 

award P a refund of its overpayment of excise tax.

(192) RESEARCH CORP. v. COMMISSIONER 193

1 Unless otherwise indicated, all section, chapter, subchapter, part, and subtitle references are 

to the Internal Revenue Code (Code), as amended and in effect for the year at issue, and all 

Rule references are to the Tax Court Rules of Practice and Procedure. Amounts are rounded 

to the nearest dollar. 

John Frederick Daniels, III, for petitioner. 

Annie Lee and Peter James Gavagan, for respondent. 

OPINION 

HAINES, Judge: Respondent determined a deficiency of 

$879,468 in petitioner’s Federal excise tax for 2003. The 

issues for decision after concessions are: (1) whether petitioner is liable for excise tax under section 4980 1 for 2003 on 

a reversion received from an employee pension plan, and (2) 

if we find that petitioner is not liable for excise tax under 

section 4980, whether petitioner is entitled to an overpayment credit or refund. 

Background

The parties submitted this case fully stipulated pursuant 

to Rule 122. The parties’ stipulation of facts, with attached 

exhibits, are incorporated herein by this reference. At the 

time the petition was filed, petitioner was a New York corporation with its principal place of business in Tucson, 

Arizona. 

Petitioner is a nonprofit corporation incorporated in New 

York in 1912 and authorized to do business in Arizona. Petitioner is, and has been since the enactment of the income 

tax, exempt from Federal income tax under what is now section 501(c)(3). Petitioner was classified as a private foundation pursuant to a ruling letter from the Internal Revenue 

Service (IRS) dated October 31, 1986. Thereafter petitioner 

was reclassified as a section 4942(j) operating private foundation pursuant to a ruling letter from the IRS dated June 25, 

1987. 

In 1961 petitioner established the Research Corporation 

Employees Pension Plan (plan). The plan has been amended 

and restated from time to time and has received favorable 

determination letters from respondent. On July 21, 1999, 

petitioner sent a private letter ruling request pursuant to 

Rev. Proc. 99–4, 1999–1 C.B. 115, to respondent with respect 

to the taxability under sections 511 and 4980 of an asset 

194 138 UNITED STATES TAX COURT REPORTS (192) 

reversion to the plan sponsor upon termination of a defined 

benefit plan. 

On July 12, 2000, petitioner provided to respondent a 

postconference submission of additional information pursuant 

to Rev. Proc. 2000–4, 2000–1 C.B. 115, with respect to its 

July 21, 1999, private letter ruling request. Petitioner also 

withdrew its request with respect to section 4980 in an 

October 2, 2000, letter to respondent. Respondent issued a 

private letter ruling on May 9, 2001, to petitioner in which 

he determined that the reversion of assets from the plan to 

petitioner would not constitute unrelated business taxable 

income (UBTI) under section 512(a) (1). 

On May 23, 2003, respondent issued petitioner a favorable 

determination letter with respect to the plan’s qualification 

under section 401(a) upon termination. Four days later, 

respondent issued another favorable determination letter 

with respect to the qualification of the plan, clarifying some 

issues and superseding his prior May 23, 2003, determination letter. 

The plan terminated on May 31, 2002. At the time of its 

termination the plan held a potential gross reversion of 

$5,881,860. The plan made a direct transfer of 25% of the 

gross reversion, $1,470,465, to a qualified replacement plan 

under section 4980(d) known as the Research Corporation 

Employees’ Replacement Pension Plan and transferred the 

remainder of the assets making up the reversion, $4,411,395, 

to petitioner. 

Having withdrawn its ruling request on the section 4980 

issue, on August 22, 2003, petitioner filed a Form 5330, 

Return of Excise Taxes Related to Employee Benefit Plans, 

that reported a reversion amount received from the employee 

benefit plan of $14,055 and included a payment of $2,811 in 

excise taxes pursuant to section 4980(a). In an attachment to 

the Form 5330, petitioner asserted that because it had, at all 

times, been exempt from tax under subtitle A, it was not subject to excise tax on the entire reversion pursuant to section 

4980(a) and (c)(1)(A). However, petitioner also stated on the 

attachment to Form 5330: ‘‘for purposes of this submission, 

however, Research Corporation accepts that a portion of 

reversion is subject to the section 4980 ‘to the extent’ 

Research Corporation has been subject to UBIT [unrelated 

business income tax], based upon the proportion of UBTI

(192) RESEARCH CORP. v. COMMISSIONER 195

2 Respondent argues that petitioner has conceded it is liable for the excise tax under sec. 4980 

by submitting Form 5330, reporting a reversion subject to tax of $14,055 and paying an excise 

tax of $2,811. We do not view either the submission of Form 5330 or the statement as a concession. We note that all concessions are subject to the Court’s discretionary review and may be 

rejected in the interests of justice. See McGowan v. Commissioner, 67 T.C. 599, 607 (1976). If 

the submission of the Form 5330 and the statement contained therein can be viewed as a concession, we reject it. Petitioner has maintained throughout this proceeding in its petition and 

its briefs that it is not subject to excise tax. 

3For 1952, 1953 and 1954 petitioner reported UBTI and paid tax thereon. For 2000 and 2001 

petitioner filed Forms 990–T, Exempt Organization Business Income Tax Return, reporting a 

total of $265,000 of unrelated debt-financed income (UDFI) upon which it paid unrelated business income tax. Respondent concedes that during all periods in which contributions were made 

to the plan, petitioner received no tax benefit because of its exempt status under sec. 501(c)(3) 

and because petitioner made no contributions to the plan in any period in which petitioner received UBTI or UDFI. 

4The statutory notice of deficiency was issued more than 6 years after petitioner filed its 

Form 5530. The statute of limitations is an affirmative defense that must be specifically pleaded. Petitioner did not raise the statute of limitations as an affirmative defense in its pleadings 

for the taxable year at issue. Accordingly, we find that petitioner has waived that defense. See

Rule 39. 

5 Respondent calculated the underreported amount by subtracting the $14,055 petitioner reported as a reversion from the $4,411,395 reversion actually received. 

6 Respondent has conceded that petitioner is not liable for the sec. 6651(a)(2) addition to tax. 

received by Research Corporation in comparison to its other 

income’’. 2

Petitioner based its calculation that only $14,055 of the 

total reversion of $4,411,395 was subject to the section 4980 

excise tax upon a ratio of unrelated business taxable income 

reported in all years over total income it received for the 

years 1988 through 2001. 3

Respondent, on January 22, 2010, 4 issued a statutory 

notice of deficiency to petitioner in which he determined that 

petitioner had underreported the amount of the reversion 

subject to section 4980 excise tax by $4,397,340 5 and, accordingly, was liable for a deficiency in excise tax of $879,468 and 

a failure to pay addition to tax pursuant to section 6651(a)(2) 

of $219,867. 6

Discussion

I. Burden of Proof

As a general rule the taxpayer bears the burden of proving 

that the Commissioner’s determinations are erroneous. Rule 

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).

196 138 UNITED STATES TAX COURT REPORTS (192) 

7For a plan to qualify as a replacement plan, (1) 95% of the active participants in the terminated plan who remain as the employer’s employees after the termination must be active participants in the replacement plan, sec. 4980(d)(2)(A), and (2) in general, there must be a direct 

transfer from the terminated plan to the replacement plan of at least 25% of the maximum 

amount the employer could receive as an employer reversion without regard to the increased 

tax rate provisions of sec. 4980(d), sec. 4980(d)(2)(B). 

II. Whether Petitioner Is Liable for Excise Tax Under Section 

4980

A. Section 4980

Congress enacted section 4980 as part of the Tax Reform 

Act of 1986, Pub. L. No. 99–514, sec. 1132, 100 Stat. at 2478, 

to impose an excise tax on any assets reverting to an 

employer maintaining a qualified plan. An employer reversion is the amount of cash and the fair market value of other 

property received, directly or indirectly, by an employer from 

a qualified plan. Sec. 4980(c)(2)(A). A tax rate of 50% applies 

to an employer reversion unless the employer establishes a 

qualified replacement plan before receiving the reversion. 7

Sec. 4980(d). There is no dispute that petitioner established 

a qualified replacement plan pursuant to section 4980(d). 

Therefore, if the tax applies to petitioner’s reversion, the tax 

rate is reduced to 20%. Sec. 4980(a), (d)(1)(A). 

The excise tax is imposed only on employer reversions from 

‘‘qualified plan[s]’’. The term ‘‘qualified plan’’ means any plan 

meeting the requirements of section 401(a) or 403(a), other 

than a plan maintained by an employer if such employer has, 

at all times, been exempt from tax under subtitle A. Sec. 

4980(c)(1)(A). The meaning of the emphasized language is in 

dispute. 

Petitioner claims that its plan is not a ‘‘qualified plan’’ as 

that term is defined in section 4980(c)(1)(A) because petitioner has been exempt from tax under subtitle A at all times 

during its existence. As a result, petitioner maintains that it 

is not liable under section 4980 for the 20% excise tax on the 

reversion it received upon termination of the plan. 

Respondent claims that the plan is a ‘‘qualified plan’’ because 

petitioner paid unrelated business income tax for the years 

1952, 1953, 1954, 2000, and 2001. Because the tax on unrelated business income is a tax under subtitle A, respondent 

contends that petitioner has not, at all times, been exempt 

from tax under subtitle A. 

(192) RESEARCH CORP. v. COMMISSIONER 197

This Court is presented with a case of first impression: 

whether a section 501(c)(3) organization’s employee pension 

plan becomes a ‘‘qualified plan’’ for purposes of section 4980 

if the organization pays tax on unrelated business income. 

B. Statutory Interpretation

The Supreme Court has held that ‘‘ ‘in any case of statutory construction, * * * [its] analysis begins with the language of the statute, * * * And where the statutory language provides a clear answer, it ends there as well’ ’’. Harris 

Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 

238, 254 (2000) (quoting Hughes Aircraft Co. v. Jacobson, 525 

U.S. 432, 438 (1999)). Similarly, the Supreme Court has 

stated that ‘‘where the language of an enactment is clear, 

and construction according to its terms does not lead to 

absurd or impracticable consequences, the words employed 

are to be taken as the final expression of the meaning 

intended.’’ United States v. Mo. Pac. R.R. Co., 278 U.S. 269, 

278 (1929). Thus we look to the specific language of the 

statute to determine whether it is clear and unambiguous. 

Both respondent and petitioner argue that section 

4980(c)(1)(A) is clear and unambiguous. However, it is the 

application of the statute upon which they disagree. We 

agree that the statute is clear and unambiguous. Thus the 

issue before us is whether petitioner ‘‘has, at all times, been 

exempt from tax under subtitle A’’. 

C. Whether Petitioner Has, at All Times, Been Exempt 

From Tax Under Subtitle A

Chapter 1, subchapter F of subtitle A, titled ‘‘Exempt 

Organizations’’, contains a number of provisions relevant to 

our inquiry. Petitioner is, and has been at all times, an 

organization exempt from income tax before and after the 

enactment of section 501(c)(3). Section 501(a) provides that a 

section 501(c)(3) organization shall be exempt from taxation 

under this subtitle [subtitle A] unless such exemption is 

denied under sections 502 or 503’’. Sections 502 and 503 are 

inapplicable in this case. Furthermore, section 501(b) provides that 

An organization exempt from taxation under subsection (a) shall be subject 

to tax to the extent provided in parts II, III, and VI of this subchapter, 

198 138 UNITED STATES TAX COURT REPORTS (192) 

but (notwithstanding parts II, III, and VI of this subchapter) shall be 

considered an organization exempt from income taxes for the purpose of 

any law which refers to organizations exempt from income taxes. 

Part III of subchapter F is the only part relevant to our 

inquiry as it sets forth the rules for taxation of UBTI. 

Section 511 imposes a tax on the UBTI of an organization 

described in section 501(c)(3). Section 512 defines UBTI as the 

gross income derived by an exempt organization from any 

unrelated trade or business regularly carried on by it, less 

certain deductions and modifications. Section 514(a) provides 

that income from unrelated debt-financed property is 

included in UBTI under section 512 and, as such, is subject 

to the unrelated business income tax provided by section 511. 

For 1952, 1953, and 1954 petitioner reported UBTI and paid 

tax thereon, and for 2000 and 2001 petitioner reported UDFI

and paid unrelated business income tax thereon. Respondent 

argues that petitioner has paid unrelated business income 

tax under sections 511, 512, and 514 and that such payment 

of tax is a tax under subtitle A. Therefore, respondent contends that petitioner is not an employer who has, at all 

times, been exempt from tax under subtitle A as is required 

by section 4980(c)(1)(A). 

With respect to section 501(b), respondent argues that ‘‘the 

present case is not a revocation case; the Service is not 

seeking to revoke petitioner’s tax-exempt status under [section] 501(c)(3). Rather, at issue is the imposition of the excise 

tax pursuant to [section] 4980 which is contained in subtitle 

D’’. Therefore section 501(b) is irrelevant. Moreover, 

respondent claims that section 501(b) is inapplicable to section 4980(c)(1)(A), ‘‘which deals with excise, not income, tax’’, 

and ‘‘explicitly and clearly is concerned with whether the 

organization has ever not been exempt from tax under subtitle A’’. 

We disagree. We find that section 501(b) is directly on 

point and relevant to our inquiry into whether petitioner, 

has, at all times, been an organization exempt from tax 

under subtitle A. We also disagree with respondent’s reading 

of section 501(b). Respondent would like us to ignore the 

plain language of section 501(b), which provides that a section 501(c)(3) organization shall be subject to tax to the 

extent it has UBTI but, notwithstanding any unrelated busiVerDate 0ct 09 2002 10:12 Jun 06, 2013 Jkt 372897 PO 20009 Frm 00007 Fmt 2847 Sfmt 2847 V:\FILES\RESEARCH.138 SHEILA
(192) RESEARCH CORP. v. COMMISSIONER 199

ness income tax paid, the organization ‘‘shall be considered 

an organization exempt from income taxes for the purpose of 

any law which refers to organizations exempt from income 

taxes’’. (Emphasis added.) Section 4980(c)(1)(A) is a law 

which refers to organizations exempt from tax under subtitle 

A, i.e., income taxes. Respondent argues that section 501(b) 

deals only with whether an organization will maintain its 

tax-exempt status for purposes of subchapter F. We disagree. 

Congress did not limit section 501(b) to laws under subchapter F, chapter 1, or even subtitle A. Section 501(b) refers 

to ‘‘any law’’, which includes the entire Code. Section 501(b) 

helps inform our understanding of section 4980(c)(1)(A) by 

explaining when an organization is considered exempt from 

tax under subtitle A. 

We also disagree with respondent’s interpretation of section 4980(c)(1)(A). The statute provides that the term ‘‘qualified plan means any plan meeting the requirements of section 401(a) or 403(a) other than a plan maintained by an 

employer if such employer has, at all times, been exempt from 

tax under subtitle A’’. (Emphasis added.) Respondent contends that the statute requires us to find whether petitioner 

‘‘has ever not been exempt from tax under subtitle A’’. The 

statute is worded in the positive, not in the negative as 

respondent contends. Nevertheless, we find that petitioner 

has never not been exempt from tax under subtitle A, 

because of the effect of section 501(b). Moreover, the statute 

does not require us to determine whether the employer has 

ever paid a tax under subtitle A. Rather it requires us to 

determine whether the employer has always been considered 

exempt from tax under subtitle A. It is a very important 

distinction given Congress’ enactment of section 501(b). 

Petitioner argues that respondent’s interpretation of the 

relevant language in section 4980(c)(1)(A), if applied to the 

identical language in other statutes, would create an absurd 

result. We agree. It is a well-established canon of statutory 

interpretation that ‘‘ ‘identical words used in different parts 

of the same act are intended to have the same meaning.’ ’’ 

United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., 

Inc., 508 U.S. 439, 460 (1993) (quoting Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993)). 

A number of other statutes apply to an organization 

exempt from tax under subtitle A. Section 6672(a) imposes a 

200 138 UNITED STATES TAX COURT REPORTS (192) 

penalty on any person who is required to collect, truthfully 

account for, and pay over a tax imposed by the Code and 

willfully fails to do so. However, ‘‘no penalty is imposed by 

subsection (a) on any unpaid, volunteer member of any board 

of trustees or directors of an organization exempt from tax 

under subtitle A’’ if such member serves in an honorary 

capacity, does not participate in day to day or financial operations, and does not have actual knowledge of the failure on 

which such penalty is imposed. Sec. 6672(e) (emphasis 

added). Adopting respondent’s interpretation of section 

4980(c)(1)(A) would mean that a voluntary board member of 

a section 501(c)(3) organization who otherwise meets the 

requirements of section 6672(e) would still be liable for the 

penalty under section 6672(a) if the section 501(c)(3) 

organization incurred UBTI during the years in question. We 

find such an outcome to be at odds with the purpose of the 

statute. 

Similarly, section 457 provides that any amount of compensation deferred under an eligible deferred compensation 

plan, and any income attributable to the amounts so 

deferred, shall be includible in gross income only for the taxable year in which such compensation or other income is paid 

or otherwise made available to the participant or other beneficiary, in the case of a plan of an eligible employer described 

in subsection (e)(1)(B). An eligible employer means any 

‘‘organization (other than a governmental unit) exempt from 

tax under this subtitle.’’ Sec. 457(e)(1)(B) (emphasis added). 

Section 457 is part of subtitle A. Applying respondent’s 

interpretation of section 4980(c)(1)(A) to section 457(e)(1)(B) 

would lead to a result in which section 501(c)(3) organizations would become ineligible for section 457 deferred compensation plans upon receiving UBTI. 

We find that petitioner is an organization that has, at all 

times, been exempt from tax under subtitle A. Therefore, 

petitioner’s plan is not a qualified plan for purposes of section 4980 and petitioner is not liable for the excise tax thereunder. 

D. Legislative History

Respondent alternatively argues that petitioner is not 

eligible for the exception under section 4980(c)(1)(A) because 

(192) RESEARCH CORP. v. COMMISSIONER 201

8See Garcia v. United States, 469 U.S. 70, 76 n.3 (1984); Venture Funding, Ltd. v. Commissioner, 110 T.C. 236, 241–242 (1998), aff’d without published opinion, 198 F.3d 248 (6th Cir. 

1999). 

of the following statement of legislative history: ‘‘The agreement provides that the excise tax does not apply to a reversion to an employer that has at all times been tax-exempt. 

Of course, this exception does not apply to the extent that 

such employer has been subject to unrelated business income 

tax or has otherwise derived a tax benefit from the qualified 

plan.’’ H.R. Conf. Rept. No. 99–841 (Vol. II), at II–483 (1986), 

1986–3 C.B. (Vol. 4) 1, 483. Having found that section 

4980(c)(1)(A) is unambiguous, we do not rely on the legislative history in making our decision. 8 However, since 

respondent has raised legislative history in his briefs, we will 

briefly address its relevance. 

Respondent argues that because the above-quoted statement uses the word ‘‘or’’ rather than ‘‘and’’, Congress 

intended that anytime an organization has been subject to 

unrelated business income tax it is automatically ineligible 

for the section 4980(c)(1)(A) exception. We do not agree with 

respondent’s argument. Respondent ignores the phrase ‘‘to 

the extent’’. That phrase limits the application of the legislative history to a specific set of facts. When coupled with the 

phrase ‘‘or has otherwise’’ the legislative history addresses a 

set of facts where the tax-exempt organization, whether it 

incurred unrelated business income tax or not, derived a tax 

benefit from the qualified plan. Respondent has conceded 

that petitioner did not derive a tax benefit from the plan. In 

any event, as we have previously discussed, the statute is 

clear that an organization exempt from tax under subtitle A 

(i.e., petitioner) is exempt from excise tax under section 

4980(c)(1)(A). Respondent’s argument raises facts not present 

in our case and should be left to a future determination in 

which such facts are at issue. 

We find that the plan is not a qualified plan for purposes 

of section 4980 and petitioner is not liable for the excise tax 

thereunder. 

III. Whether Petitioner Is Entitled to an Overpayment Credit 

or Refund

Having found that petitioner is not liable for the excise tax 

under section 4980, we now must turn to the issue of 

202 138 UNITED STATES TAX COURT REPORTS (192) 

9SEC. 6512(b). OVERPAYMENT DETERMINED BY TAX COURT.—

* * * * * * *

(3) LIMIT ON AMOUNT OF CREDIT OR REFUND.—No such credit or refund shall be allowed or 

made of any portion of the tax unless the Tax Court determines as part of its decision that 

such portion was paid—

(A) after the mailing of the notice of deficiency, 

(B) within the period which would be applicable under section 6511(b)(2), (c), or (d), if on 

the date of the mailing of the notice of deficiency a claim had been filed (whether or not 

filed) stating the grounds upon which the Tax Court finds that there is an overpayment, 

or 

(C) within the period which would be applicable under section 6511(b)(2), (c), or (d), 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—

whether petitioner is entitled to an overpayment credit or 

refund for its payment of $2,811 in excise taxes under section 

4980. 

The Tax Court is a court of limited jurisdiction, and it may 

exercise its jurisdiction only to the extent authorized by 

statute. Sec. 7442; Commissioner v. Gooch Milling & Elevator 

Co., 320 U.S. 418, 420 (1943). This Court is authorized to 

redetermine the amount of a deficiency for a taxable period 

as to which the Commissioner issued a notice of deficiency 

and the taxpayer timely petitioned the Court for review. See

secs. 6212, 6213, and 6214. This Court also has jurisdiction 

to determine the amount of any overpayment a taxpayer 

made for a year that is properly before the Court on a petition to redetermine a deficiency. Sec. 6512(b)(1). If the Court 

determines that there is an overpayment and further determines the amount of the overpayment that is refundable in 

accordance with section 6512(b)(3), the overpayment amount 

thus determined ‘‘shall, when the decision of the Tax Court 

has become final, be credited or refunded to the taxpayer.’’ 

Sec. 6512(b)(1). 

Although we have determined that an overpayment exists, 

our jurisdiction to order a refund or credit of an overpayment 

is limited and depends upon when the taxes were paid. See

secs. 6511(a) and (b), 6512(b); Commissioner v. Lundy, 516 

U.S. 235 (1996). Under section 6512(b)(3), we may order the 

credit or refund of an overpayment only if one of three conditions is met. 9 The first condition, set out in section 

6512(b)(3)(A), is that the tax be paid after the mailing of the 

notice of deficiency, which did not occur here. Petitioner 

made its $2,811 payment on August 22, 2003, and the notice 

of deficiency was mailed on January 22, 2010. 

(192) RESEARCH CORP. v. COMMISSIONER 203

10 Sec. 6511(c) and (d) is not relevant to our inquiry. 

The second condition, set out in section 6512(b)(3)(B), 

allows a credit or refund of an overpayment if a claim for 

refund deemed filed on the date the notice of deficiency was 

mailed would have constituted a timely claim for refund of 

the overpaid amount under applicable limitations periods 

prescribed in section 6511(b)(2), (c), or (d). Since petitioner 

did not seek a refund before filing its petition, for purposes 

of section 6512(b)(3)(B) its claim is deemed filed on the date 

of the notice of deficiency, January 22, 2010. 

Section 6512(b)(3)(B) directs the Court’s attention to section 6511(b)(2), 10 which in turn instructs the Court to apply 

either a three-year or a two-year look-back period. Section 

6512(b)(3)(B) limits this Court’s jurisdiction to credit or 

refund an overpayment of taxes to taxes paid in either the 

three-year period or two-year period immediately preceding 

the date of the notice of deficiency, depending on whether the 

taxpayer qualifies for the three-year or two-year look-back 

period prescribed by section 6511(b)(2). A taxpayer qualifies 

for the three-year look-back period if the taxpayer filed a 

claim for refund within three years of the date the taxpayer 

filed its return. Petitioner’s claim is deemed filed on January 

22, 2010, the date of the notice of deficiency, more than three 

years after petitioner filed its Form 5330 on August 22, 2003. 

Thus, petitioner does not qualify for the three-year look-back 

period. A taxpayer qualifies for the two-year look-back period 

if the taxpayer did not file its claim for refund within three 

years of the date the taxpayer filed its return. Petitioner 

qualifies for the two-year look-back period. However, since 

petitioner paid its tax on August 22, 2003, more than two 

years before the filing of the notice of deficiency, we are foreclosed from issuing a credit or refund of the overpayment of 

taxes. Thus, the deemed claim under section 6512(b)(3)(B) 

offers no benefit to petitioner. 

The third condition, set out in section 6512(b)(3)(C), applies 

where an actual claim for refund, which is timely under section 6511, has been filed before the mailing of the notice of 

deficiency and either has not been disallowed or, if disallowed, was or could have been the basis of a timely refund 

suit as of the date of the notice of deficiency. In such circumstances, any credit or refund is limited to taxes paid 

204 138 UNITED STATES TAX COURT REPORTS (192) 

within the periods specified in section 6511(b)(2), (c), or (d) 

and before the date of the notice of deficiency. Petitioner filed 

its claim for refund as part of its petition on April 26, 2010, 

after the mailing of the notice of deficiency. 

We conclude that we lack jurisdiction to award petitioner 

a refund of its overpayment of excise tax. 

In reaching our holdings, we have considered all arguments made, and, to the extent not mentioned, we conclude 

that they are moot, irrelevant, or without merit. 

To reflect the foregoing, 

Decision will be entered for petitioner as to 

the excise tax but not as to the overpayment 

or refund. 

f