Long story short, he told me i didn't have to send him the gears back, but i could if i wanted to.
Short story long:
I contacted him and told him i was only interested if it was a .825 5th gear. i have multiple .780 5th gears and didn't need a 3rd back up. he assured me it was the .825 , that he also found that cool gear and put it together.
confusing bit , "for my autocross build" .. which made me think "better 5th gear, for AutoX?"
but anywho i went ahead, felt i over paid, but it was a hard gear to find.
part shows up i deliver it to tom, who then tells me "looks exactly like your last gear" i took a picture and sent it the seller Jay. he followed up with "oops sorry , but lmk if you are Certain its wrong, but i'll check my garage"
over the next .. 90 days + (because i was out of the pay pal dispute, and visa charge back window) we PM back and forth . basically him saying he will look, and after a few weeks i Pmed him for a status update. i wasn't in too much of a hurry because the rally season hadn't started.
But as time went on, he was taking longer and longer to respond.
1 week with out reply
2 weeks with out reply
3 weeks with out reply, click on his "posts made by this user" and you see he has posted every day, during the 3 weeks with no reply to me, so i sent him an other PM (maybe he missed it) nothing, sent 1 more, nothing
OK he's knowingly or unknowingly strung me along during the entire 90 day charge back period, then shortly after wont' reply for multiple weeks.
so then i went into E-thug mode. WTF do i have to lose? internet reputation on nasioc? what do i have to gain? the correct 5th gear, or a full refund?
So i did it. I felt bad, but fully justified. you may not agree, but i don't really give a shit.

I made every possible effort to let him correct the issue. he did not sell me what was advertised.
and i do plan on sending him back the correct 5th gear, i just haven't been back over to Toms many times since the refund , and so i' get around to it. i figure he strung me along almost 4 months. if he waits 2 months to get the gear back (after saying he's okay with me keeping it) I don't see an issue with that.
first contact was january, i told him it was the wrong gear early march. After my first initial telling him the gear was wrong, several months went by ..

lol oh wellz