Pp. 250-253. 45 F.3d 856, reversed. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.

Indeed, the cases cited by the government appear to suggest a result quite the opposite from that advanced by the government. See, e.g., Galuska v. CIR, 5 F.3d 195, 196 (7th Cir. 1993) ("If the claim was filed within a 3-year period the amount of refund is limited to the amount of tax paid during the 3-year period immediately preceding the filing of the claim.") (emphasis added); see also Lundy v. I.R.S., 45 F.3d 856, 858 (4th Cir. 1995) ("the taxpayer could collect a refund of any overpayment of withheld taxes so long as the taxpayer filed his claim on or before [the applicable time period].") (emphasis added), rev'd on other grounds, ___ U.S. ___, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996). Simply put, had Congress intended that a refund claim be limited to the amount of overpayment charged in the administrative claim, it would have said so.

If the taxpayer has been given a notice of deficiency by the I.R.S. and desires to bring a claim for a refund or credit associated with that claimed deficiency, the suit is brought in Tax Court, and jurisdiction is granted in 26 U.S.C. § 6512(a) and (b)(1). Lundy v. Commissioner, 45 F.3d 856, 859 (4th Cir. 1995), rev'd on other grounds, U.S., 116 S.Ct. 647, 133 L.Ed.2d 611 (1996). If, however, the taxpayer has paid the tax and chooses to make a petition for a credit or refund of that overpayment where no relevant deficiency notice has been sent, the taxpayer may file in federal district court. This case concerns the latter, obviously, and jurisdiction here is determined by looking at 26 U.S.C. § 6511.

We thus disagree with the implications of the Federal Circuit's conclusion in Cohen that the decision to dispute a liability necessarily signifies an intent not to make a payment on that liability. Contesting a deficiency in the Tax Court rather than in a district court or the Claims Court does give a taxpayer the option of not paying the deficiency before filing suit, see Lundy v. IRS, 45 F.3d 856, 860 (4th Cir. 1995), but that does not mean that a taxpayer who chooses that option has necessarily chosen not to pay a tax earlier. Admittedly, the government's argument here is not as strong as it has been in other cases.

Simply stated, a refund may include additional taxes paid after the filing of a refund claim, so long as the total does not exceed the portion of tax paid prior to the administrative claim. Lundy v. IRS, 45 F.3d 856, 858 (4th Cir. 1995); Keeter, 957 F.Supp. at 1164. C. The Court Lacks Subject-Matter Jurisdiction over the Plaintiffs' Refund Claims1. The Gurrola Plaintiffs Fail to Allege Exhaustion of Administrative Remedies The defendant takes pains to make clear that a tax refund suit is the exclusive remedy for a taxpayer to recovery wrongfully collected taxes.

Keeter v. United States, 957 F. Supp. 1160, 1163, 1165 (E.D. Cal. 1997). Simply stated, a refund may include additional taxes paid after the filing of a refund claim, so long as the total does not exceed the portion of tax paid prior to the administrative claim. Id. at 1164; Lundy v. I.R.S., 45 F.3d 856, 858 (4th Cir. 1995). D. The Plaintiff Has Standing To Bring His APA Claim1.

Some circuits interpret section 6511(a) strictly, holding that a refund claim based on a delinquent return is timely if the claim is filed within three years from the time the delinquent return is filed. See Lundy v. Commissioner, 45 F.3d 856, 867 (4th Cir. 1995), rev'd on other grounds, 516 U.S. 235 (1996); Oropallo v. United States, 994 F.2d 25, 30-31 (1st Cir. 1993) (per curiam), cert. denied, 510 U.S. 1050 (1994). Other circuits have held that the three-year limitation period applies only if the taxpayer files a timely tax return.

" Id.         In Lundy v. Internal Revenue Service, 45 F.3d 856, 858 (4th Cir.1995),cert. granted, 515 U.S. 1102, 115 S.Ct. 2244, 132 L.Ed.2d 254 (1995), the Court of Appeals for the Fourth Circuit explained that Section 6511 gives a taxpayer three years from the due date of his income tax return to claim a refund for all income tax withheld from him during the tax year.

Lundy overruled the U.S. Court of Appeals for the Fourth Circuit's view that the two-year lookback period "must be defined in terms of the date that the taxpayer actually filed a claim for refund." Id. at 246 (citing Lundy v. IRS, 45 F.3d 856, 861 (4th Cir. 1995), rev'd, 516 U.S. 235 (1996)). The IRS contends that section 6512(b)(3)(C) does not permit the refund because no claim for refund was filed before the mailing date of the Notice of Deficiency.

There can be an underpayment without an income tax deficiency.See, e.g., Lundy v. Commissioner, T.C. Memo.1993–278, revd. 45 F.3d 856 (4th Cir.1995), revd. 516 U.S. 235, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996), in which the parties agreed that the taxpayer had a $778 deficiency even though the taxpayer's withheld (and not refunded) income taxes exceeded his total tax liability.