Whether a remittance of estimated taxes or of taxes withheld from wagesis a payment of tax that is subject to the limitation on tax refunds setforth in Section 6511(b) of the Internal Revenue Code, 26 U.S.C. 6511(b).



In the Supreme Court of the United States



No. 98-1667

DAVID H. BARAL, PETITIONER

v.

UNITED STATES OF AMERICA



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT



BRIEF FOR THE UNITED STATES



OPINIONS BELOW

The judgment and memorandum of the court of appeals (Pet. App. A1-A4) andthe opinion of the district court (Pet. App. A5-A10) are not officiallyreported.

The judgment of the court of appeals was entered on January 20, 1999. Thepetition for a writ of certiorari was filed on April 13, 1999. The jurisdictionof this Court is invoked under 28 U.S.C. 1254(1).
STATUTES AND REGULATIONS INVOLVED
The relevant portions of Sections 6151, 6315, 6401, 6402, 6511, and 6513of the Internal Revenue Code, 26 U.S.C. 6151, 6315, 6401, 6402, 6513, andof 26 C.F.R. 301.6402-3 are set forth at App., infra, 1a-7a.

1. During 1988, petitioner's employer withheld a total of $4104 in federalincome taxes from petitioner's wages and remitted those taxes to the UnitedStates. In January 1989, petitioner made an additional remittance to theUnited States of $1100 as an estimated tax for the fourth quarter of 1988.Petitioner thereafter sought and was granted an extension of time to August15, 1989, in which to file his 1988 income tax return. He did not file hisreturn for that year, however, until June 1, 1993 (Pet. App. A3, A5-A6).
On the untimely 1988 return that petitioner filed in 1993, he claimed thathis 1988 taxes had been overpaid by $1175 and sought to have that overpaymentcredited against his outstanding tax obligations for 1989. The InternalRevenue Service assessed the tax liability reported by petitioner on hisbelated 1988 return but denied the requested credit of the overpayment (Pet.App. A3, A6). The Service concluded that the requested credit was barredby Section 6511(b) of the Internal Revenue Code, which specifies that "theamount of [any] credit or refund shall not exceed the portion of the taxpaid within the period, immediately preceding the filing of the claim, equalto 3 years plus the period of any extension of time for filing the return."26 U.S.C. 6511(b)(2)(A). Because petitioner's refund claim was filed afterthe period described in Section 6511(b)(2)(A) had expired, no credit orrefund could be allowed on the untimely claim.

2. Petitioner thereafter commenced this refund suit in federal districtcourt. Petitioner claimed that the withheld and estimated tax remittancesmade with respect to his 1988 liability were "deposits" ratherthan "payments" of tax and that the statutory limitations on therecovery of taxes based upon the time "the tax [was] paid" (26U.S.C. 6511(b)(2)(A)) therefore did not bar his refund claim (Pet. App.A3, A6).
The district court rejected petitioner's claim. The court held that theremittances of withholding and estimated taxes were "payments"of tax that were subject to the statute of limitations. Because the refundclaim was not made within the period permitted under Section 6511, the courtheld that petitioner's claim was barred by the plain text of the statute(Pet. App. A8).1
In so ruling, the court rejected petitioner's reliance on the decision ofthis Court in Rosenman v. United States, 323 U.S. 658 (1945). The courtexplained (Pet. App. A8) that Rosenman is premised on the existence of an"interim arrangement" between the taxpayer and the Internal RevenueService under which money is remitted and "held not as taxes duly collected* * * but as a deposit in the nature of a cash bond" (323 U.S. at 662).In the present case, petitioner cannot "point to any analogous arrangementbetween himself and the IRS in which he indicated that he wished [the] remittanceto be held as cash bond or 'deposit'" (Pet. App. A8).

3. The court of appeals affirmed (Pet. App. A1-A4). The court held thatthe contention that the remittances of withheld and estimated taxes weredeposits rather than payments of tax is "foreclosed by the plain languageof the statute" (id. at A3):
Section 6513(b)(1) provides that any amount of tax withheld from wages is"deemed to have been paid" by the recipient of the income on April15 of the following year. Similarly, § 6513(b)(2) provides that anyamount paid as estimated income tax shall be "deemed to have been paid"on April 15 of the following year.
The court concluded that the remittances of withheld and estimated taxes"were payments as a matter of law" under the plain text of thesestatutory provisions (Pet. App. A3). The court explained that the rationaleof Rosenman does not apply to a case, such as the present one, which involvesa "statutorily defined payment" rather than a consensual depositarrangement (id. at A4).
DISCUSSION
The court of appeals correctly held that a withholding tax remittance anda quarterly estimated tax payment constitute payments of tax that are governedby the statutory limitations on recovery set forth in Section 6511 of theInternal Revenue Code. Such remittances are not made under the type of consensualdeposit arrangement addressed by this Court in Rosenman v. United States,323 U.S. 658 (1945).
As the petition correctly notes, however, the courts of appeals have longbeen in disarray in their interpretation and application of Rosenman. Inparticular, the decision in the present case is in direct conflict withthe holding of the Fifth Circuit in Harden v. United States, 76 A.F.T.R.2d (P-H) 95-7980 (Nov. 30, 1995), that estimated tax remittances made priorto assessment are merely "deposits," not payments of tax.2 Thislongstanding confusion and uncertainty among the courts of appeals concerningthe proper application of the principles established in Rosenman can, ofcourse, be resolved only by this Court. The proper application of the statutoryprovisions that limit tax refunds is a matter of substantial importancethat gives rise to a significant volume of litigation. Review by this Courtof this continuing conflict among the circuits is therefore warranted.
1. a. Section 6511(b) of the Internal Revenue Code imposes "substantivelimitations on the amount of recovery" on tax refund claims. UnitedStates v. Brockamp, 519 U.S. 347, 352 (1997). These substantive limitationsare set forth in "unusually emphatic form." Id. at 350. When,as in the present case, a refund claim is filed within three years of thefiling of the return, the statute specifies that (26 U.S.C. 6511(b)(2)(A)):
the amount of the credit or refund shall not exceed the portion of the taxpaid within the period, immediately preceding the filing of the claim, equalto 3 years plus the period of any extension of time for filing the return* * * .
Because all of petitioner's withholding and estimated tax remittances weremade more than four years before his return and refund claim were filed(see note 1, supra), the court of appeals correctly held that none of thosepayments may be refunded "under the plain language of the statute"(Pet. App. A3).
b. Petitioner errs in claiming that his withholding and estimated tax paymentsshould be treated as "deposits" rather than as "payments"of tax and that the statutory limitations on the recovery of taxes "paid"to the United States (26 U.S.C. 6511(b)(2)(A)) therefore do not bar hisclaim in this case. The distinction that petitioner posits between tax "deposits"and tax "payments" finds no support in the Internal Revenue Code.The Code, which strictly regulates tax refund suits "in a highly detailedtechnical manner" (United States v. Brockamp, 519 U.S. at 350), containsno mention whatever of tax "deposits." Instead, in language that"cannot easily be read as containing implicit exceptions" (ibid.),Section 6511(b) comprehensively establishes unqualified limitations on therecovery of any taxes "paid" in any manner to the United States.
In Rosenman, however, the Court drew a distinction between a remittancetendered as a "payment" of tax-which triggers the limitationsapplicable to tax refund suits-and a remittance tendered as a "deposit"-which is not subject to those limitations.3 Based upon what the Court concludedwas then-prevailing administrative practice, the Court held in Rosenmanthat a "deposit" occurs when a remittance is tendered to the governmentas part of an "interim arrangement" to cover "future"contingencies and is not tendered to "discharge * * * a liability"or to "pay one that was asserted." 323 U.S. at 662.4 The Courtstated in Rosenman that the government had given a "practical construction* * * [t]o such arrangements" and "does not consider" suchadvances from the taxpayer to constitute "tax payments." Ibid.The Court concluded that it merely "interpret[s] a business transactionaccording to its tenor" to recognize that "receipt by the Governmentof moneys under such an arrangement" constitutes a "deposit"rather than a "payment" of tax. Id. at 662, 663.5 The rationaleof Rosenman is thus that a "deposit" (rather than a "payment")occurs when the taxpayer and the government have expressly or impliedlyagreed to a "business transaction" or "arrangement"under which the remittance is tendered by the taxpayer, and accepted andtreated by the government, as a "deposit * * * in the nature of a cashbond." Id. at 662.
In the present case, however, there was plainly no consensual deposit "arrangement"between the taxpayer and the government of the type described by the Courtin Rosenman. See note 5, supra. Indeed, there were no communications ofany type between the taxpayer and the government concerning the treatmentto be given these remittances. Moreover, the statutes under which the remittanceswere made specify that any "tax withheld from wages" or "paidas estimated income tax" for any year "shall be 'deemed to havebeen paid' on April 15 of the following year" (Pet. App. A3, quoting26 U.S.C. 6513(b)(1)-(2)). As the court of appeals concluded in this case,remittances of withheld and estimated taxes constitute "payments asa matter of law" under these statutory provisions (Pet. App. A3).
Following this Court's decision in Rosenman, the Treasury Department adoptedrules that set forth the specific circumstances and conditions under whichthe government will accept a remittance as a consensual "deposit"rather than a "payment" of taxes (Rev. Proc. 84-58, 1984-2 C.B.501; see also Rev. Rul. 89-6, 1989-1 C.B. 119; Rev. Proc. 82-51, 1982-2C.B. 839). Those conditions-which include a requirement that the taxpayerexpressly designate the remittance as a "deposit"-were plainlynot met in this case.6 See Pet. App. A6. In this context, there was manifestlyno express nor implied-in-fact consensual "business transaction"or "arrangement" between the taxpayer and the United States fora "deposit" rather than a "payment" to be made. Theessential prerequisites for application of this Court's decision in Rosenmanare thus not satisfied in this case. Petitioner's refund claim must thereforebe denied because, in filing his belated claim, he failed to "conformstrictly to the requirements of Congress." Rosenman v. United States,323 U.S. at 661.

2. The courts of appeals have adopted distinct and conflicting lines ofauthority in their effort to interpret and apply this Court's decision inRosenman.
a. The most extreme position, which most courts have rejected, is that takenby the Fifth Circuit. That circuit holds that any remittance made priorto the formal assessment of the tax "is, as a matter of law, a deposit"rather than a payment of tax. Harden v. United States, 76 A.F.T.R. 2d (P-H)at 95-7981. In Harden, the court applied that rationale in holding, in directconflict with the decision in the present case, that an estimated tax remittance"forwarded to the IRS be- fore an assessment of tax is to be considereda deposit rather than a payment." Ibid. See also Thomas v. MercantileNational Bank, 204 F.2d 943 (5th Cir. 1953); Ford v. United States, 618F.2d at 357.7
The Fifth Circuit has reasoned that a tax liability cannot be "paid"by a remittance made before the tax is assessed because, absent an assessment,there is "no liability on the part of the taxpayer, and consequentlynothing to pay." Thomas v. Mercantile National Bank, 204 F.2d at 944.That reasoning, however, is fundamentally flawed. The underlying liabilityto pay a tax exists independently of "assessment or notice and demandfrom the Secretary" (26 U.S.C. 6151(a)). An assessment is simply theadministrative act of "recording the liability of the taxpayer in theoffice of the Secretary" (26 U.S.C. 6203).8 As the Seventh Circuitheld in Moran v. United States, 63 F.3d 663, 666-667 (1995), an "assessment"is a prerequisite for various administrative collection activities, but"the liability of the taxpayer" exists independently of, and precedes,the formal assessment of the tax. See 26 U.S.C. 6151(a) ("the personrequired to make such return shall, without assessment or notice and demandfrom the Secretary, pay such tax * * * at the time and place fixed for filingthe return") (emphasis added)).9
b. The rule adopted by the Fifth Circuit conflicts with the decisions ofthe Ninth Circuit in Zeier v. Internal Revenue Service, 80 F.3d 1360 (1996),the Seventh Circuit in Moran v. United States, 63 F.3d at 667-668 (1995),the Fourth Circuit in Ewing v. United States, 914 F.2d 499, 502-503 (1990),cert. denied, 500 U.S. 905 (1991), the Sixth Circuit in Ameel v. UnitedStates, 426 F.2d 1270, 1273 (1970), the Third Circuit in Fortugno v. Commissioner,353 F.2d 429 (1965), cert. dismissed, 385 U.S. 954 (1966), and the SecondCircuit in Lewyt Corp. v. Commissioner, 215 F.2d 518, 522-523 (1954), judgmentaff'd in part and rev'd in part on another issue, 349 U.S. 237 (1955). Thesecourts have consistently rejected the conclusion of the Fifth Circuit that"there can be no payment of tax before the IRS makes a formal assessmentof the * * * tax liability" (Zeier v. Internal Revenue Service, 80F.3d at 1364)). They have held instead that the "facts and circumstances"of each case must be considered in determining whether the parties intendedthe remittance to be treated as a payment or as a deposit.10
Other courts, including the court of appeals in the present case, have adoptedstill another method of analysis that looks to the specific statutory provisionunder which the remittances were made to determine whether the "remittanceswere payments as a matter of law" (Pet. App. A3). These courts haveheld that certain specific types of remittances-such as estimated tax paymentsand wage withholdings-constitute a "payment" rather than a "deposit"as a matter of law, even in the absence of any prior assessment of the taxand even in the face of a contrary expression of intent by the taxpayer.11See, e.g., Ertman v. United States, 165 F.3d 204 (2d Cir. 1999) (estimatedtaxes); Ott v. United States, 141 F.3d 1306, 1309-1310 (9th Cir. 1998) (same);Gabelman v. Commissioner, 86 F.3d 609, 612-613 (6th Cir. 1996) (same); Weigandv. United States, 760 F.2d 1072 (10th Cir. 1985) (same); Ehle v. UnitedStates, 720 F.2d 1096 (9th Cir. 1983) (wage withholdings). These decisionshave concluded that the question whether the taxpayer "intended"withheld taxes or estimated taxes to be a "deposit" is irrelevantbecause Section 6513(b) of the Code specifies that such taxes are "deemedto be paid" on the date the return for that year is due. See 26 U.S.C.6513(b)(1)-(2); Ott v. United States, 141 F.3d at 1309-1310; Ehle v. UnitedStates, 720 F.2d at 1097; note 11, supra. As the court of appeals statedin this case, Section 6513(b) "conclusively determines that these remittances[of withholding and estimated taxes] were payments as a matter of law"(Pet. App. A3).12

3. The proper classification of a remittance as a payment or deposit isa question of recurring importance on which the courts of appeals have adoptedconflicting analyses that have yielded inconsistent results. The InternalRevenue Service "processes more than 200 million tax returns each year[and] issues more than 90 million refunds." United States v. Brockamp,519 U.S. at 352. These millions of taxpayers, and the Service as well, needa secure basis for understanding the consequences that follow from remittancesof taxes to the United States. Only this Court can resolve the recurringconflict that exists among the courts of appeals on the application of thisCourt's Rosenman decision to these fundamental issues of tax administration.Resolution of that conflict by this Court is needed to avoid continuinguncertainty and disparate application of the revenue laws.13

The petition for a writ of certiorari should be granted.
Respectfully submitted.

SETH WAXMAN
Solicitor General
LORETTA C. ARGRETT
Assistant Attorney General
GILBERT S. ROTHENBERG
CHARLES BRICKEN
Attorneys

JUNE 1999


1 Petitioner's tax return, which functioned as his claim for credit or refund,was filed more than four years after the remittances of withheld and estimatedtaxes (Pet. App. A6).
2 In Harden, the Fifth Circuit held that an estimated tax payment submittedwith an application for an extension of time for the filing of a returnis only a "deposit," and not a "payment" of tax, underthe binding precedents of that circuit. In Thomas v. Mercantile NationalBank, 204 F.2d 943 (1953), and Ford v. United States, 618 F.2d 357 (1980),the Fifth Circuit interpreted Rosenman to signify that "an amount remittedbefore an assessment of tax is, as a matter of law, a deposit" ratherthan a payment of tax. Harden v. United States, 76 A.F.T.R. 2d (P-H) at95-7981. Especially in view of the fact that the decision in Harden reliedon preexisting circuit precedent, the fact that the Harden decision is notofficially reported is of "no weight in [this Court's] decision toreview the case" (Commissioner v. McCoy, 484 U.S. 3, 7 (1987)).
3 As the Federal Circuit stated in New York Life Insurance Co. v. UnitedStates, 118 F.3d 1553, 1556 (1997), cert. denied, 523 U.S. 1094 (1998):
The Code does not deal with deposits of taxes or provide procedures fortheir making or recovery. The concept of a "deposit" of taxes,which is not a payment, stems from the Supreme Court's decision in Rosenman* * * .
4 The Court reasoned in Rosenman that a taxpayer would enter into such a"deposit arrangement" to stop the running of penalties and interestand that the government, in exchange, would thereby obtain a "cashbond for the payment of taxes thereafter found to be due." 323 U.S.at 662.
5 In Rosenman, unlike in the present case, the remittance had been accompaniedby a letter stating that it was made "under protest and duress, andsolely for the purpose of avoiding penalties and interest, since it is contendedby the [taxpayer] that not all of this sum is legally or lawfully due."323 U.S. at 660. The Service placed the remittance in Rosenman in a non-interestbearing "suspense account" to the credit of the estate. It wasin this context that the Court concluded in Rosenman that an implied "businesstransaction" or "arrangement" had been made between the taxpayerand the government to treat the remittance as a "deposit * * * in thenature of a cash bond." Id. at 662.
6 Under the procedures specified by the Treasury, a taxpayer-typically oneunder audit who expects to receive an adverse determination-must expresslydesignate the remittance as a deposit. A deposit thus made is returnableon demand, without interest, until such time as the Service is authorizedto make the assessment. Rev. Proc. 84-58, §§ 401.3, 402.1, 1984-2C.B. at 502.
7 The Federal Circuit has adopted a close variant of the Fifth Circuit rule.In New York Life Insurance Co. v. United States, 118 F.3d 1553, 1559 (Fed.Cir. 1997), cert. denied, 523 U.S. 1094 (1998), the court held that a remittancemust be treated as a deposit "as a matter of law" when it is tenderedbefore the tax is assessed and with an accompanying "protest"of the underlying liability. As the Seventh Circuit correctly concludedin rejecting that same contention in Moran v. United States, 63 F.3d 663,669 (1995), however, the fact that a "protest" accompanies theremittance cannot transmute a payment into a deposit, for the Code expresslyspecifies that taxes may be "paid under protest" (26 U.S.C. 7422(b)(emphasis added)).
8 The Internal Revenue Service generally does not make an assessment oftax until the taxpayer has filed his return and the return has been processedadministratively. Under the Fifth Circuit's rule, all withholding taxes,estimated taxes, and even remittances accompanying tax returns would merelybe "deposits" until the Service processes the return and makesan assessment of the amounts due.
9 Similarly, the Code provides that a tax collection suit may be broughtby the government "without assessment" of the tax. 26 U.S.C. 6501(a)(& Supp. III 1997). As this Court concluded in Manning v. Seeley Tube& Box Co., 338 U.S. 561, 565 (1950), on the date the return is requiredto be filed, "the taxpayer has a positive obligation to the UnitedStates: a duty to pay its tax."
10 In United States v. Dubuque Packing Co., 233 F.2d 453 (1956), the EighthCircuit followed the Fifth Circuit's decision in Mercantile National Bankin holding that a remittance held by the IRS in a suspense account did notconstitute a payment until the tax was formally assessed. In Essex v. Vinal,499 F.2d 226 (8th Cir. 1974), cert. denied, 419 U.S. 1107 (1975), however,without discussing its prior decision in Dubuque Packing Co., the EighthCircuit held that a remittance of estimated taxes prior to assessment constituteda payment when the taxpayer and the IRS treated it as such.
11 The Ninth Circuit held in Zeier v. Internal Revenue Service, 80 F.3dat 1364, that a taxpayer's ostensible intent to make a deposit can not "defeata statutory mandate" that the remittance be regarded as a payment oftax.
12 Petitioner raises three additional arguments on the merits, each of whichlacks substance. Petitioner first attempts to distinguish between "paymentsof withholding tax or estimated tax" and "payments of income tax"(Pet. 12). Withholding and estimated taxes, however, are simply devicesfor collecting income taxes, and they are refundable only to the extentthat they result in an overpayment of income tax. See, e.g., 26 U.S.C. 6315("[p]ayment of the estimated tax * * * shall be considered paymenton account of the income taxes imposed by subtitle A for the taxable year");26 U.S.C. 31(a)(1) (amount withheld as tax from wages is credited againstincome tax liability).
Petitioner erroneously asserts (Pet. 17) that application of the statutoryrefund limitations to his claim violates due process of law. As this Courtstated in United States v. Dalm, 494 U.S. 596, 609-610 n.7 (1990), "[t]hevery purpose of statutes of limitations in the tax context is to bar theassertion of a refund claim after a certain period of time has passed, withoutregard to whether the claim would otherwise be meritorious. That a taxpayerdoes not learn until after the limitations period has run that a tax waspaid in error, and that he or she has a ground upon which to claim a refund,does not operate to lift the statutory bar."
Petitioner further errs in relying (Pet. 18-19) on Section 6513(d), whichspecifies that an overpayment of estimated tax that is "claimed asa credit" in one year "shall be considered as a payment of theincome tax for the succeeding taxable year" (26 U.S.C. 6513(d)). Thatstatute does not convert an untimely claim for a credit in one year intoa timely "payment" of tax for the next year. Since, under Section6511(b)(2)(A), petitioner had no lawful right to a credit for 1988, therewas no credit available from that year to apply to the following year'staxes under Section 6513(d).
13 For essentially the same reasons, the United States petitioned for awrit of certiorari from the Federal Circuit's decision in New York LifeInsurance Co. (see note 7, supra), but this Court denied review. 523 U.S.1094 (1998). The conflict in the circuits persists, however, and remainsof recurring importance.


APPENDIX

1. Section 6151(a) of the Internal Revenue Code, 26 U.S.C. 6151, providesin relevant part:
Except as otherwise provided in this subchapter, when a return of tax isrequired under this title or regulations, the person required to make suchreturn shall, without assessment or notice and demand from the Secretary,pay such tax to the internal revenue officer with whom the return is filed,and shall pay such tax at the time and place fixed for filing the return(determined without regard to any extension of time for filing the return).
* * * * *

2. Section 6315 of the Internal Revenue Code, 26 U.S.C. 6315, provides inrelevant part:
Payment of the estimated income tax, or any installment thereof, shall beconsidered payment on account of the income taxes imposed by subtitle Afor the taxable year.

3. Section 6401 of the Internal Revenue Code, 26 U.S.C. 6401, provides inrelevant part:

(a) The term "overpayment" includes that part of the amount ofthe payment of any internal revenue tax which is assessed or collected afterthe expiration of the period of limitation properly applicable thereto.

(b)(1) If the amount allowable as credits under subpart C of part IV ofsubchapter A of chapter 1 (relating to refundable credits) exceeds the taximposed by subtitle A (reduced by the credits allowable under subparts A,B, and D of such part IV), the amount of such excess shall be consideredan overpayment.

* * * * *

4. Section 6402 of the Internal Revenue Code, 26 U.S.C. 6402, provides inrelevant part:
(a) In the case of any overpayment, the Secretary, within the applicableperiod of limitations, may credit the amount of such overpayment, includingany interest allowed thereon, against any liability in respect of an internalrevenue tax on the part of the person who made the overpayment and shall,subject to subsections (c) and (d), refund any balance to such person.
(b) The Secretary is authorized to prescribe regulations providing for thecrediting against the estimated income tax for any taxable year of the amountdetermined by the taxpayer or the Secretary to be an overpayment of theincome tax for a preceding taxable year.

* * * * *

5. Section 6511 of the Internal Revenue Code, 26 U.S.C. 6511, provides inrelevant part:
(a) Claim for credit or refund of an overpayment of any tax imposed by thistitle in respect of which tax the taxpayer is required to file a returnshall be filed by the taxpayer within 3 years from the time the return wasfiled or 2 years from the time the tax was paid, whichever of such periodsexpires the later, or if no return was filed by the taxpayer, within 2 yearsfrom the time the tax was paid. Claim for credit or refund of an overpaymentof any tax imposed by this title which is required to be paid by means ofa stamp shall be filed by the taxpayer within 3 years from the time thetax was paid.
(b)(1) No credit or refund shall be allowed or made after the expirationof the period of limitation prescribed in subsection (a) for the filingof a claim for credit or refund, unless a claim for credit or refund isfiled by the taxpayer within such period.
(2) (A) If the claim was filed by the taxpayer during the 3-year periodprescribed in subsection (a), the amount of the credit or refund shall notexceed the portion of the tax paid within the period, immediately precedingthe filing of the claim, equal to 3 years plus the period of any extensionof time for filing the return. If the tax was required to be paid by meansof a stamp, the amount of the credit or refund shall not exceed the portionof the tax paid within the 3 years immediately preceding the filing of theclaim.

(B) If the claim was not filed within such 3-year period, the amount ofthe credit or refund shall not exceed the portion of the tax paid duringthe 2 years immediately preceding the filing of the claim.

(C) If no claim was filed, the credit or refund shall not exceed the amountwhich would be allowable under subparagraph (A) or (B), as the case maybe, if claim was filed on the date the credit or refund is allowed.

* * * * *