JACKSON v. COMMISSIONER

T.C. Memo. 2002-44

UNITED STATES TAX COURT

ROXIE LEE JACKSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5898-98. Filed February 12, 2002.

Roxie Lee Jackson, pro se.

Albert B. Kerkhove, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

MARVEL, Judge: Respondent determined the following

deficiencies and additions to tax with respect to petitioner’s

Federal income taxes:1

1
All section references are to the Internal Revenue Code in
effect for the taxable years at issue, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
 - 2 -

Addition to tax
Year Deficiency sec. 6651(a)(1)

1993 $17,176 $836
1994 16,430 693

After concessions,2 the sole issue for decision is whether

the refund of overpayments made by petitioner in 1993 and 1994 is

barred by the operation of sections 6511 and 6512(b). We hold

that it is.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

The stipulation of facts is incorporated herein by this

reference. At the time the petition was filed, petitioner

resided in Elkhorn, Nebraska.

Petitioner failed to file timely Federal income tax returns

for the years 1992, 1993, 1994, and 1995. On April 22, 1996,

petitioner and his wife mailed their joint Federal income tax

return for 1992 to the Internal Revenue Service (Service) with a

letter (the April 1996 letter), informing the Service that they

had not yet filed their Federal income tax returns for 1993,

1994, and 1995, but that the returns would be completed shortly.3

2
Respondent concedes the deficiencies to the extent they
exceed the amounts reported on petitioner and his wife’s Federal
income tax returns for 1993 and 1994. Respondent also concedes
the additions to tax.
3
The record does not disclose when the Service received the
1992 return and letter. Although respondent concedes the Service
received the documents, neither the 1992 return nor the April
(continued...)
 - 3 -

The letter stated further that petitioner and his wife

anticipated each of the delinquent returns would show an income

tax refund of several thousand dollars and emphasized that

petitioner and his wife did not owe any additional taxes for the

years 1993, 1994, and 1995. The letter stated petitioner and his

wife were due refunds for each year. The letter referenced

petitioner’s Social Security number and was sent on behalf of

both petitioner and his wife. Only petitioner’s wife signed the

letter, however.

On December 29, 1997, respondent mailed notices of

deficiency for 1993 and 1994 to petitioner. The notices of

deficiency did not refer to the April 1996 letter. Petitioner

filed a timely petition in response to the notices.

On March 30, 1998, petitioner and his wife filed joint

Federal income tax returns for 1993 and 1994 with the Internal

Revenue Service Center at Kansas City, Missouri. The 1993 and

1994 returns reported the following:

Income tax
Year withholding Income tax due Overpayment

1993 $13,834 $10,414 $3,420
1994 13,658 7,737 5,921

3
(...continued)
1996 letter was introduced as an exhibit in this case by either
party. Our findings of fact regarding the contents of the April
1996 letter are drawn from the testimony of petitioner and his
wife, which we concluded was credible. Respondent did not
contest their description of the April 1996 letter.
 - 4 -

Respondent has accepted the returns as filed but disputes that

petitioner and his wife have overpayments of tax allowable by

law, claiming that refunds of the overpayments for 1993 and 1994

are barred by sections 6511 and 6512(b).

OPINION

If a notice of deficiency is issued to a taxpayer for a

particular taxable period and the taxpayer files a timely

petition in this Court claiming an overpayment for that taxable

period, that overpayment may be refunded only as provided in

section 6512(b). Sec. 6512(b); sec. 301.6512-1(a), Proced. &

Admin. Regs. With respect to a taxpayer’s claim to an

overpayment in a proceeding before this Court, the requirements

of section 6512(b) are jurisdictional. Commissioner v. Lundy,

516 U.S. 235 (1996); Harlan v. Commissioner, 116 T.C. 31, 32 n.2

(2001). Petitioner bears the burden of proving that his claimed

overpayments are refundable under section 6512(b). Rule

142(a)(1).4

Section 6512(b)(1) provides that if the Tax Court finds that

the taxpayer has made an overpayment of income tax for the same

taxable year in respect of which the Commissioner determined a

deficiency, the Court has jurisdiction to determine the amount of

4
The burden of proof provisions of sec. 7491 do not apply
here because the examination in this case began before July 22,
1998. Internal Revenue Service Restructuring & Reform Act of
1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726.
 - 5 -

the overpayment, and the overpayment amount must be credited or

refunded to the taxpayer after the decision has become final.

Section 6512(b)(3) limits the amount of the credit or refund,

however. Section 6512(b)(3) provides that no credit or refund of

any portion of the tax shall be allowed or made unless the Tax

Court determines as part of its decision that such portion was

paid–-

(A) after the mailing of the notice of deficiency,

(B) within the period which would be applicable under
section 6511(b)(2), (c), 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,
or

(C) within the period which would be applicable under
section 6511(b)(2), (c), or (d), in respect of any claim
for refund filed within the applicable period specified
in section 6511 and before the date of the mailing of the
notice of deficiency–-

(i) which had not been disallowed before
that date,

(ii) which had been disallowed before that
date and in respect of which a timely suit for
refund could have been commenced as of that
date, or

(iii) in respect of which a suit for refund
had been commenced before that date and within
the period specified in section 6532.

No portion of either overpayment was paid within the period

described in section 6512(b)(3)(A) or (B). In this case, the

overpayments in question were made before the date the notices of

deficiency were mailed and outside the periods which would be
 - 6 -

applicable under section 6511(b)(2), (c), or (d) if the claims

for refund were deemed filed on the dates the notices of

deficiency were mailed. Sec. 6511(b)(2); Commissioner v. Lundy,

supra. Likewise, section 6512(b)(3)(C)(ii) and (iii) does not

apply because petitioner’s alleged informal refund claim had not

been disallowed before the date the notice of deficiency was

mailed and because petitioner had not filed a timely refund suit

before the date the notice of deficiency was mailed. The only

provision of section 6512(b)(3) under which petitioner arguably

qualifies is section 6512(b)(3)(C)(i), which requires proof that

the taxpayer seeking a refund filed a timely refund claim that

had not been disallowed before the date the notice of deficiency

was mailed.

The Arguments of the Parties

Ordinarily, if a taxpayer does not file his Federal income

tax return for a taxable year before the Commissioner mails a

notice of deficiency for that same year, any refund of income tax

for that taxable year is limited to the taxes paid within 2 years

before the date the notice of deficiency is mailed.5

Commissioner v. Lundy, supra. See generally secs. 6511(a),

6512(b)(3)(B). Respondent contends that petitioner falls within

this rule. According to respondent, petitioner is entitled to a

5
An amendment to sec. 6512(b)(3), effective for tax years
ending after Aug. 5, 1997, and thus inapplicable here, extends
the lookback period to 3 years in some circumstances.
 - 7 -

refund only if the taxes in question were paid during the period

beginning on December 29, 1995, and ending on December 29, 1997.

Because the only payments petitioner made for 1993 and 1994 were

attributable to Federal income tax withholding and, therefore,

are deemed by statute to have been made on April 15, 1994 and

1995, respectively, sec. 6513(c)(2), respondent contends that no

portion of the claimed overpayments was paid during the

applicable 2-year period.

Petitioner argues, however, that he filed a timely refund

claim under section 6512(b)(3)(C)(i). Although petitioner did

not file his Federal income tax returns for 1993 and 1994 until

after the notices of deficiency were mailed, petitioner contends

that the April 1996 letter qualified as an informal refund claim

with respect to his overpayments for 1993 and 1994 and that his

informal refund claim was filed within 2 years of the dates the

overpayments were deemed paid, as required by section 6511.

Petitioner implicitly argues that the April 1996 letter provided

sufficient information to respondent to qualify as an informal

refund claim and that an informal refund claim is a qualifying

claim under section 6512(b). Respondent denies that petitioner

filed an informal refund claim with respect to petitioner’s 1993

and 1994 overpayments.
 - 8 -

The April 1996 Letter

Although respondent could not locate the April 1996 letter

and petitioner could not find a copy of it to introduce in

evidence at trial, respondent conceded that such a letter was

sent and received and does not dispute the description of its

contents given by petitioner and his wife at trial. In the April

1996 letter, petitioner and his wife provided a statement of the

reasons they had not filed their returns for 1993-95, asserted

their intention to file the returns for 1993-95 shortly, and

stated clearly that they did not owe any additional tax for any

of the years 1993-95. The letter stated unequivocally that

petitioner and his wife had overpaid their taxes for each of the

years and that the IRS owed them several thousand dollars for

those years. The letter was written by petitioner’s wife on

behalf of herself and petitioner, referenced petitioner and his

Social Security number, and was reviewed by petitioner before it

was mailed. It was attached to the delinquent joint 1992 Federal

income tax return of petitioner and his wife. The 1992 return

was signed under oath by both petitioner and his wife and claimed

a refund of income tax overpaid.6

6
Respondent subsequently refunded the 1992 overpayment to
petitioner and his wife.
 - 9 -

Respondent argues that the April 1996 letter petitioner

mailed to the Internal Revenue Service Center did not qualify as

a refund claim for several reasons. The April 1996 letter did

not satisfy the technical requirements for a formal refund claim.

Petitioner did not sign the letter under penalties of perjury.

The April 1996 letter did not set forth in detail each ground

upon which a claim for refund was being made or the exact basis

for the claim.

Under regulations promulgated by the Secretary, a properly

prepared claim for refund (formal refund claim) must satisfy

certain requirements. Secs. 301.6402-2 and 301.6402-3, Proced. &

Admin. Regs.7 Although respondent correctly points out that the

April 1996 letter does not satisfy the requirements of a formal

7
They include the following:

(1) The claim must be in writing. For taxes other than
income tax, the claim must be on Form 843. Sec. 301.6402-2(c),
Proced. & Admin. Regs. For income taxes, any claim for refund
must be made on the appropriate income tax return or amended
income tax return. Sec. 301.6402-3(a), Proced. & Admin. Regs.

(2) The claim must set forth in detail each ground upon
which a refund is claimed and facts sufficient to apprise the
Commissioner of the basis of the refund. Sec. 301.6402-2(b)(1),
Proced. & Admin. Regs.

(3) The claim must be verified by a written declaration that
it is made under penalties of perjury. Id. If a claim is
executed by an agent of the taxpayer, a power of attorney must
accompany the claim. Sec. 301.6402-2(e), Proced. & Admin. Regs.

(4) With respect to income tax (and other taxes not relevant
here), a separate claim is required for each taxable period.
Sec. 301.6402-2(d), Proced. & Admin. Regs.
 - 10 -

refund claim, the defects respondent identifies do not

necessarily render the April 1996 letter ineffective as an

informal refund claim. It has long been recognized that a

writing which does not qualify as a formal refund claim

nevertheless may toll the period of limitations applicable to

refunds if (1) the writing is delivered to the Service before the

expiration of the applicable period of limitations, (2) the

writing in conjunction with its surrounding circumstances

adequately notifies the Service that the taxpayer is claiming a

refund and the basis therefor, and (3) either the Service waives

the defect by considering the refund claim on its merits or the

taxpayer subsequently perfects the informal refund claim by

filing a formal refund claim before the Service rejects the

informal refund claim. United States v. Kales, 314 U.S. 186, 194

(1941) (involving a protest letter); George Moore Ice Cream Co.

v. Rose, 289 U.S. 373 (1933) (involving a defective original

claim); Bemis Bros. Bag Co. v United States, 289 U.S. 28 (1933)

(involving a defective original claim); United States v. Factors’

& Fin. Co., 288 U.S. 89, 91 (1933) (involving a claim for refund

“of sweeping generality”); United States v. Memphis Cotton Oil

Co., 288 U.S. 62 (1933) (involving a claim rejected as too

general); United States v. Felt & Tarrant Manufacturing Co., 283

U.S. 269 (1931); Bonwit Teller & Co. v. United States, 283 U.S.

258 (1931) (involving a letter and executed waiver form); Am.
 - 11 -

Radiator & Standard Sanitary Corp. v. United States, 162 Ct. Cl.

106, 318 F.2d 915, 920 (1963).

The sparse record in this case establishes that the April

1996 letter notified respondent that petitioner believed he had

overpaid his taxes for 1993 and 1994 and that he was entitled to

a refund of those overpayments. The April 1996 letter, however,

contained no description of the basis for petitioner’s refund

claim. For a writing to qualify as an informal refund claim, the

writing, evaluated with reference to the surrounding

circumstances, must give the Commissioner adequate notice that

the taxpayer is seeking a refund of taxes for specified years and

of the basis for the claim. The relevant inquiry, therefore, is

whether, under all the facts and circumstances, petitioner gave

sufficient notice of the basis for his refund claim to respondent

so that respondent could investigate the claim and make a

determination on the merits. See, e.g., Turco v. Commissioner,

T.C. Memo. 1997-564.

In this case, we are presented with a factual record that is

so inadequate we cannot fairly conclude that petitioner made an

informal refund claim. Neither the April 1996 letter nor

petitioner’s jointly filed income tax return for 1992 is an

exhibit in this case. Although respondent agrees the April 1996

letter was sent and does not dispute that the contents of the

April 1996 letter are as described by petitioner and his wife at
 - 12 -

trial, the letter, by itself, does not provide the minimum

information necessary to apprise respondent of the basis of

petitioner’s claim.8 The April 1996 letter contains no more than

an unsupported assertion by petitioner and his wife that they

believed they were entitled to refunds for 1993 and 1994. A

writing evaluated with reference to its surrounding circumstances

that provides no information about the basis of a taxpayer’s

refund claim does not qualify as an informal refund claim because

it does not give the Commissioner “notice fairly advising the

Commissioner of the nature of the taxpayer’s claim”. United

States v. Kales, supra at 194.

Petitioner bears the burden of proving that he is entitled

to a refund of the overpayments he claims for 1993 and 1994.

Rule 142(a)(1). Because petitioner failed to prove that he made

an informal refund claim and because the record establishes that

8
Petitioner did not argue that the April 1996 letter coupled
with his 1992 tax return constituted his informal refund claim.
Even if petitioner had made such an argument, the record
foreclosed any evaluation of the argument. Neither petitioner
nor respondent introduced the 1992 return into evidence, and
petitioner did not testify as to the contents of the 1992 return.
Without the 1992 return or some testimony regarding its contents
in the record, we simply cannot evaluate whether the facts giving
rise to the 1992 overpayment, which respondent refunded, were
substantially similar to the facts generating the overpayments
for 1993 and 1994. The only facts we can fairly find on this
record are that the April 1996 letter provided notice to
respondent that petitioner felt he was entitled to a refund for
1993 and 1994 and that the letter and the surrounding
circumstances did not adequately notify respondent of the basis
of the claim. See BCS Fin. Corp. v. United States, 118 F.3d 522,
524-525 (7th Cir. 1997).
 - 13 -

petitioner did not file a timely formal refund claim, we must

conclude that petitioner has failed to prove that he filed a

qualifying refund claim as required by section 6512(b)(3)(C)(i).

Consequently, we hold that petitioner is not entitled to a refund

of his overpayments for 1993 and 1994 under section

6512(b)(3)(C)(i).

We have considered the other arguments of the parties and,

to the extent not discussed above, we conclude that the arguments

are irrelevant, moot, or meritless.

To reflect the foregoing,

Decision will be entered

under Rule 155.