Borenstein v. C.I.R., 919 F.3d 746

Borenstein paid $112,000 in 2012 taxes (deemed paid on the 2012 return due date, April 15, 2013) and obtained a six-month filing extension to October 15, 2013, but did not file by then.
The IRS mailed a notice of deficiency on June 19, 2015 (26 months after the due date); Borenstein filed her late 2012 return on August 29, 2015, showing a correct tax liability of $79,559 and an overpayment ultimately agreed to be $32,441.
Borenstein petitioned the Tax Court seeking redetermination of the deficiency and a refund of the overpayment; the parties stipulated to the numbers so the sole question was Tax Court jurisdiction to order a refund.
The Tax Court held it lacked jurisdiction because, under 26 U.S.C. § 6512(b)(3), Borenstein (a non‑filer at the time the notice was mailed) was limited to a two‑year look‑back, and the overpayment occurred outside that period.
The principal statutory question was whether the flush phrase "during the third year after the due date (with extensions) for filing the return" means the third year after the due date inclusive of any extension period (favoring Borenstein) or the third year after the expiration of the extension (the Commissioner's position adopted by the Tax Court).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Tax Court has jurisdiction under 26 U.S.C. § 6512(b)(3) to order a refund of an overpayment deemed paid on the return due date when a notice of deficiency was mailed during the third year after the due date that includes the extension period	"(with extensions)" extends the "third year after the due date," so the notice mailed 26 months after the due date was during the third year and triggers a 3‑year look‑back	"(with extensions)" modifies only "due date," so the third year runs after the extension ends; the notice fell in a gap and only a 2‑year look‑back applies	Court reversed Tax Court: "(with extensions)" extends the third year to include the extension period, giving Borenstein a 3‑year look‑back and jurisdiction for refund

Comm'r v. Lundy, 516 U.S. 235 (1996) (Supreme Court held nonfilers were limited to a two‑year look‑back absent statutory change)
Barnhart v. Thomas, 540 U.S. 20 (2003) (rule of the last antecedent is a nonabsolute canon and may be overcome by context)
Abramski v. United States, 573 U.S. 169 (2014) (statutory words must be read in statutory context, structure, history, and purpose)
Maracich v. Spears, 570 U.S. 48 (2013) (interpretation must consider statutory structure and history)
Maier v. Comm'r, 360 F.3d 361 (2d Cir. 2004) (Tax Court is a court of limited jurisdiction requiring specific congressional grant)
Wright v. Comm'r, 571 F.3d 215 (2d Cir. 2009) (review of Tax Court's statutory interpretations is de novo)
Exxon Mobil Corp. v. Comm'r, 689 F.3d 191 (2d Cir. 2012) (ambiguous tax statutes construed against the government and for the taxpayer)
United States v. Merriam, 263 U.S. 179 (1923) (longstanding canon: doubts in tax statutes resolved in favor of taxpayer)