Mary J. Rossman v. Commissioner, Internal Revenue Service

46 F.3d 1144 75 A.F.T.R.2d 95 -809, 95-1 USTC P 50,081 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Mary J. ROSSMAN, Petitioner-Appellant, v. COMMISSIONER, INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 93-70886. United States Court of Appeals, Ninth Circuit. Argued and Submitted: Jan. 13, 1995. Jan. 27, 1995. 1 Before: CANBY and NOONAN, Circuit Judges, and KING, * District Judge. 2 MEMORANDUM ** 3 The parties are familiar with the facts of the case; we will not recite them here. We affirm the decision of the Tax Court. 4 Our recent decision in Miller v. United States, 38 F.3d 473 (9th Cir. 1994), controls the result here. Miller dictates that where "no return had been filed as of two years after the date of payment of the taxes, any claim was untimely" under 26 U.S.C. Sec. 6511 (a). Miller, 38 F.3d at 475 . Section 6513(b)(1) deems all of Rossman's tax payments for 1988 to be made or April 15, 1989. Because Rossman did not file her return until July of 1991, more…