T.C. Memo. 2000-70
UNITED STATES TAX COURT
MITCHELL G. MANN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17895-97. Filed March 3, 2000.
Mitchell G. Mann, pro se.
James J. Posedel, for respondent.
MEMORANDUM OPINION
LARO, Judge: This case is before the Court fully
stipulated. See Rule 122, Tax Court Rules of Practice and
Procedure. Respondent determined a $9,477 deficiency in
petitioner’s 1990 Federal income tax, additions thereto of $1,119
and $620 under sections 6651(a)(1) and 6654, respectively, and a
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$1,895 accuracy-related penalty under section 6662(a). Following
respondent’s concession that petitioner has no Federal income tax
liability for 1990, we must decide whether petitioner may receive
a refund for that year. We hold he may not. Unless otherwise
indicated, section references are to the applicable versions of
the Internal Revenue Code.
Background
Petitioner never filed a 1990 Federal income tax return.
Respondent issued to petitioner a notice of deficiency for that
year on May 21, 1997,1 and petitioner, while he resided in San
Diego, California, timely petitioned the Court to redetermine
respondent’s determinations shown therein.
On or about April 15, 1991, petitioner filed a Form 4868,
Extension Of Time to File U.S. Individual Tax Returns, with the
Commissioner and enclosed a $5,000 payment. Petitioner later
filed with the Commissioner a second request for an extension of
time to file his 1990 tax return. The Commissioner granted both
requests. On February 6, 1992, petitioner paid another $25
towards his tax liability for 1990.
Discussion
Petitioner argues that he is entitled to a $5,000 refund for
1990 because he tendered that amount to the Commissioner as a
deposit. Respondent argues that petitioner tendered the $5,000
1
The parties stipulated incorrectly that the notice was
issued on May 27, 1997.
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to the Commissioner as a payment of tax for 1990, and, hence,
that he may not receive a refund of any of that amount because it
was paid more than 2 years before respondent issued the notice of
deficiency.
We agree with respondent. Petitioner must demonstrate that
his claim for refund is timely. See Flagg v. Commissioner,
T.C. Memo. 1997-297. Although section 6512(b)(1) bestows
jurisdiction on this Court to determine the existence and amount
of any overpayment of tax to be refunded for a year before us,
section 6512(b)(3)(B) prohibits us in this case from awarding a
refund unless we determine that the refunded amount was paid
"within the period which would be applicable under section
6511(b)(2) * * * or (d), if on the date of the mailing of the
notice of deficiency a claim had been filed (whether or not
filed) stating the grounds upon which the Tax Court finds that
there is an overpayment".2 See also Commissioner v. Lundy, 516
U.S. 235, 241-242 (1996). The relevant provision of section
6511(b)(2) provides that when a claim for refund is outside the
3-year period of section 6511(a), the amount of the refund may
not exceed the amount of tax paid within the 2 years preceding
the claim for refund. See sec. 6511(b)(2)(B). Section 6511(a)
states that a claim for refund generally must be made within 3
2
The Taxpayer Relief Act of 1997, Pub. L. 105-34, sec.
1282(a), 111 Stat. 788, 1037-1038, amended sec. 6513(b)(3) for
years ending after Aug. 5, 1997.
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years from the time the return was filed or if no return was
filed by the taxpayer, within 2 years from the time the tax was
paid.
Petitioner tendered the $5,000 to the Commissioner with a
Form 4868. The Court of Appeals for the Ninth Circuit, the court
to which an appeal in this case lies, has held that a remittance
to the Commissioner in such a situation is a payment of estimated
tax and not a deposit. See Ott v. United States, 141 F.3d 1306
(9th Cir. 1998). We hold likewise. See Golsen v. Commissioner,
54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971); see also
Baral v. United States, U.S. (2000) (quarterly estimated
tax payment was a payment of tax and not a deposit). Because
petitioner’s payment of the $5,000 is considered paid on April
15, 1991, see sec. 6513(b)(2), petitioner is not entitled to
receive a refund of any of that amount, see Commissioner v.
Lundy, supra.
Decision will be entered
stating that there is no
deficiency, addition to tax,
or accuracy-related penalty
due from petitioner and there
is no overpayment due to
petitioner for 1990.