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MILLER v. UNITED STATES

No. 911, Docket 73-2756.

500 F.2d 1007 (1974)

Ned MILLER and Frances Miller, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

United States Court of Appeals, Second Circuit.

Decided July 11, 1974.

Attorney(s) appearing for the Case

Leonard Feldman, New York City (Frederick & Goglio, Mineola, N. Y.), for plaintiffs-appellants.

Carolyn R. Just, Atty., Tax Div., Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet N. Hollander, Attys., Tax Div., Dept. of Justice, Washington, D. C., and Robert Morse, U. S. Atty., E.D.N.Y., of counsel), for defendant-appellee.

Before SMITH and TIMBERS, Circuit Judges, and TYLER, District Judge.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, dismissing taxpayers' refund action on the grounds that the statute of limitations had expired. 365 F.Supp. 383 (1973). Because we agree with the taxpayers that the Commissioner is precluded from pleading the statute of limitations because he inadvertently led...

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