Tedokon v. Comm'r

T.C. Memo. 2002-308

UNITED STATES TAX COURT

TSUTOMU TEDOKON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8797-00L. Filed December 17, 2002.

P filed a petition for judicial review pursuant to
sec. 6330, I.R.C., in response to a determination by R
to proceed with collection by levy of assessed tax
liabilities for 1993, 1994, 1995, and 1997.

Held: Because P’s claim for overpayment credit
was filed within three years from the date P filed his
return, P’s claim was timely filed. Omohundro v.
United States, 300 F.3d 1065 (9th Cir. 2002), followed;
Rev. Rul. 76-511, 1976-2 C.B. 428 applied.

Held, further, because P made no tax payments
during the applicable look-back period of sec.
6511(b)(2)(A), I.R.C., the ceiling limitation on P’s
credit is zero.

Held, further, equitable relief is unavailable to
P, and R may proceed with collection of balances due as
determined in a “NOTICE OF DETERMINATION CONCERNING
COLLECTION ACTION(S) UNDER SECTION 6320 and/or 6330”.
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Tsutomu Tedokon, pro se.

Sylvia L. Shaughnessy, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

NIMS, Judge: This case arises from a petition for judicial

review filed in response to a “NOTICE OF DETERMINATION CONCERNING

COLLECTION ACTION(S) UNDER SECTION 6320 and/or 6330” (Notice).

Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the years in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure. Respondent does not challenge the Court’s

jurisdiction over this case, and petitioner does not assert that

respondent’s Appeals Officer did not take into consideration all

of the matters required by section 6330(c)(3). Consequently, the

only issue for decision is the substantive question of whether

section 6511 precludes the allowance of any portion of

petitioner’s 1991 overpayment of tax as a credit against his

liabilities for 1993, 1994, 1995, and 1997.

FINDINGS OF FACT

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

The stipulations of the parties, with accompanying exhibits, are
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incorporated herein by this reference. At the time the petition

was filed in this case, petitioner resided in San Diego,

California.

Petitioner did not timely file a Form 1040, U.S. Individual

Income Tax Return, for taxable years 1991, 1992, 1993, 1994,

1995, or 1997, respectively.

On April 18, 1991, petitioner made an estimated income tax

payment of $11,807 for his 1991 tax year. Respondent at some

point applied $1,589 of this amount against petitioner’s 1991 tax

liability, leaving a credit balance of $10,218, as reflected on

several IRS statements of account for 1991.

Respondent extended the filing date for petitioner’s 1991

income tax return from April 15 until August 15, 1992.

Respondent subsequently further extended the filing date to

October 15, 1992.

On December 14, 1998, respondent sent petitioner a standard

notice entitled “REQUEST FOR YOUR TAX RETURN” concerning the

respondent’s nonreceipt of petitioner’s 1991 income tax return.

At the bottom of this notice was the following:

* * * * * * *

*** YOU HAVE A CREDIT BALANCE OF $11807 ***
Please explain how you want us to handle your credit.
See the specific instructions on the enclosed Form
9358.
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On February 11, 1999, petitioner filed his 1991 return, on

which he reported a tax liability of $1,589. On his 1991 return,

petitioner claimed that an overpayment in the amount of $10,218

was available for credit to other tax liabilities. On Form 9358,

filed with his 1991 return, petitioner requested that respondent

apply his April 18, 1991, estimated tax payment first to his 1991

income tax liability, and then to his 1992 income tax liability.

Respondent apparently acceded to this request as to 1991, since

$1,589 of the estimated tax payment was applied against the

liability shown on the delinquent 1991 return. A computer print

of petitioner’s IRS accounts reflects a 1992 liability for tax,

interest, and penalties, through March 8, 2000, of $8,525.68.

Beyond this, the record is silent as to payment of petitioner’s

1992 tax liability.

In mid-1999, petitioner filed delinquent Federal income tax

returns for his 1992, 1993, 1994, 1995, and 1997 tax years, with

each return showing a balance due.

On October 25, 1999, respondent issued to petitioner a

letter entitled “FINAL NOTICE--NOTICE OF INTENT TO LEVY AND

NOTICE OF YOUR RIGHT TO A HEARING” relating to petitioner’s

unpaid income tax liabilities for 1993, 1994, 1995, and 1997.

Thereafter, on November 22, 1999, petitioner sent Form 12153,

“Request for a Collection Due Process Hearing”, to respondent.
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After a series of correspondences between the parties,

petitioner attended a conference with Appeals Officer Fred

McMullen on February 24, 2000. At the conference, petitioner

asserted that respondent should have applied the overpayment of

tax shown on his 1991 Federal income tax return to his tax

liabilities for the subsequent years. Petitioner did not, and

still does not, dispute the correctness of the amounts of the

underlying tax liabilities assessed by respondent for 1993, 1994,

1995, and 1997.

Although petitioner had expressed an interest in submitting

an offer in compromise, he failed to submit an offer and did not

provide the information necessary to determine whether an offer

would be an appropriate collection alternative.

On July 6, 2000, respondent issued to petitioner the

aforementioned Notice. The Notice states:

With the best information available, the requirements
of various applicable law or administrative procedures
have been met. * * *

* * * * * * *

You suggested that you believe that you are entitled to
a credit from a prior year overpayment to be used to
offset, in part if not in full, the liabilities in
question. IRS records show that your 1991 personal
income tax return, F. 1040, does show an overpayment.
However, this return was not filed until some time in
1999 so the statute of limitations for filing a claim
for credit or refund had expired; accordingly, no
credit is available to offset the liabilities at issue.

* * * * * * *

Appeals believes that, despite its intrusiveness, a
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levy is the appropriate collection action which
balances the need for efficient collection of the tax
with any concerns you may have as to the intrusiveness
of the action.

In response to the Notice, petitioner filed his petition in

this case. In his petition, petitioner alleges that the amounts

of the underlying tax liability and the years are:

Year Amount

1993 $8,600.09
1994 3,961.31
1995 801.89
1996 901.10

Total 14,264.39

Petitioner claimed a credit “from a prior year overpayment

to be used to offset, in part if not in full, the liabilities in

question.”

In his answer, respondent denied that the levy determination

relates to a tax liability for 1996, and asserts that the levy

determination relates to petitioner’s unpaid income tax liability

for 1997 in the amount of $901.10, including interest and

penalties through March 8, 2000. Petitioner does not challenge

this assertion.

OPINION

I. Standard of Review

Respondent did not send a notice of deficiency to

petitioner. Petitioner did not otherwise have an opportunity to

dispute his tax liability for 1993, 1994, 1995, or 1997. Thus,
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petitioner may challenge the existence or amount of the

underlying tax liability. Sec. 6330(c)(2)(B); Downing v.

Commissioner, 118 T.C. 22, 28 (2002). Since the validity of the

underlying tax liability is properly at issue, we review

respondent’s determination de novo. Landry v. Commissioner, 116

T.C. 60, 62 (2001).

II. Limitations on Credit or Refund Claims

Section 6511 contains two separate timeliness provisions for

credit or refund claims. Section 6511(b)(1) establishes a

prescribed period for filing a claim. Section 6511(b)(2)(A)

creates look-back periods, which provide a ceiling limitation on

the amount of allowable credit or refund. Commissioner v. Lundy,

516 U.S. 235, 239-240 (1996).

Section 6511(b)(1) incorporates the filing deadline of

section 6511(a), which provides that the taxpayer must file a

claim for credit or refund “within 3 years from the time the

return was filed or 2 years from the time the tax was paid,

whichever of such periods expires the later, or if no return was

filed by the taxpayer, within 2 years from the time the tax was

paid.” Sec. 6511(a).

The two periods provided by section 6511(b)(2)(A)

(subparagraph (B) and (C) provide look-back periods not relevant

here) are (x) that the refund claim must be filed within the 3-

year period prescribed in subsection (a), and (y) the allowable
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amount of the overpayment must not exceed the portion of the tax

paid within the period, immediately preceding the filing of the

claim, equal to 3 years plus the period of any extension of time

for filing the return.

In Miller v. United States, 38 F.3d 473 (9th Cir. 1994), the

U.S. Court of Appeals for the Ninth Circuit, the court to which

this case would normally be appealed, held that section 6511(a)

provides the taxpayer with “the right to file a claim up to three

years after the return only where that return is filed within two

years of payment of the taxes.” Miller v. United States, supra

at 476. In contrast, Rev. Rul. 76-511, 1976-2 C.B. 428, applied

the 3-year filing deadline of section 6511(a) even though the

taxpayer filed the return more than 2 years after payment of the

tax.

Other Courts of Appeals addressing this issue followed the

interpretation of section 6511(a) announced in Rev. Rul. 76-511.

For example, in Weisbart v. U.S. Dept. of Treasury, 222 F.3d 93

(2d Cir. 2000), the U.S. Court of Appeals for the Second Circuit

declined to follow Miller, and applied the 3-year filing deadline

even though the return was filed more than 2 years after the tax

was paid. See also Richards v. Commissioner, 37 F.3d 587, 589

(10th Cir. 1994), affg. T.C. Memo. 1993-102; Oropallo v. United

States, 994 F.2d 25, 26-27 (1st Cir. 1993).

Subsequent to the expiration of the briefing schedule in
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this case, the U.S. Court of Appeals for the Ninth Circuit

decided Omohundro v. United States, 300 F.3d 1065 (9th Cir.

2002), in which the court announced that “we are no longer bound

by Miller. Accordingly, we hold that under I.R.C. sec. 6511(a),

a taxpayer’s claim for credit or a refund is timely if it is

filed within three years from the date his income tax return is

filed, regardless of when the return is filed.” Id. at 1069.

In Miller, the Court of Appeals for the Ninth Circuit had

held that a taxpayer must file a return within 2 years of payment

of the taxes to recover a refund or credit; otherwise, no claim

could ever be finally barred by the 2-year-after-payment clause

of section 6511(a). Also, the court stated in Omohundro that its

construction of section 6511(a) in Miller was necessary to

prevent forum shopping under a version of section 6512(b)(3) no

longer in effect.

In Omohundro v. United States, supra, the court further

stated that “In deciding Miller, we did not consider Revenue

Ruling 76-511 which was directly on point and in effect at the

time.” Id. at 1067.

After Miller v. United States, supra, was decided in 1994,

the Supreme Court’s decision in United States v. Mead Corp., 533

U.S. 218 (2001), intervened. The court in Omohundro observed:

In United States v. Mead Corp., the Supreme Court
held that an administrative agency’s interpretation of
a statute contained in an informal rulemaking must be
accorded the level of deference set forth in Skidmore
 - 10 -

v. Swift & Co. The Court held the deference required
depends on the ‘thoroughness evident in [the agency’s]
consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and
all those factors which give it the power to persuade
* * *’. [Omohundro v. United States, 300 F.3d 1065,
1067-1068; citations omitted.]

The court in Omohundro believed that Rev. Rul. 76-511

“commands deference” because its reasoning is valid, it is

consistent with later IRS pronouncements, and its interpretation

of section 6511(a) is supported by the legislative history of the

statute. The court held that under section 6511(a), a taxpayer’s

claim for credit or refund is timely if it is filed within 3

years from the date his or her income tax return is filed,

regardless of when the return was filed. Omohundro v. United

States, supra at 1068.

Rev. Rul. 76-511, 1976-2 C.B. 428, likewise commands

deference and is applicable to this case, since the fact pattern

is the same. The facts recited in the ruling are briefly as

follows:

During 1972, the taxpayer’s employer withheld income tax,

which under section 6513(b)(1) was deemed to have been paid on

April 15, 1973. Three years and 15 days after the due date, on

April 30, 1976, the taxpayer filed his 1972 return on which he

claimed an overpayment. The IRS ruled that the taxpayer had

filed a valid claim for refund within the 3-year period of

limitations prescribed by section 6511(a), but under section
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6513(b)(1), the overpayment was deemed to have been made on April

15, 1973, which was not a payment made within the 3-year period

immediately preceding April 30, 1976, the date the claim was

filed. Therefore, reasoned the ruling, although the claim for

refund was timely filed, allowance of the refund was specifically

barred by the provisions of section 6511(b)(2)(A), which limits

the amount of the allowable refund to the amount paid within the

period immediately preceding the filing of the claim, equal to 3

years plus any extension of time for filing the return.

Rev. Rul. 76-511 goes on to point out that if the taxpayer

had filed his 1972 return on April 1, 1976, for example, the

refund would have been allowable since the overpayment would have

been made within the 3-year period immediately preceding the

filing of the claim.

Petitioner’s claim for credit was included in his 1991 tax

return and was considered filed on the same date as the return.

Section 301.6402-3(b)(5), Proced. & Admin. Regs. As such,

petitioner’s claim for credit was timely filed.

The look-back period of section 6511(b)(2)(A) is applicable

to petitioner since he filed his claim for credit during the 3-

year period prescribed for timely filing of a claim in section

6511(a). However, as previously stated, section 6511(b)(2)(A)

provides that “the amount of the credit or refund shall not

exceed the portion of the tax paid within the period, immediately
 - 12 -

preceding the filing of the claim, equal to 3 years plus the

period of any extension of time for filing the return.” Sec.

6511(b)(2)(A). Petitioner filed his claim, included in his 1991

return, on February 11, 1999. He had received extensions for

filing his 1991 return totaling 6 months (one extension for 4

months and another for 2 months). Therefore, the relevant look-

back period under 6511(b)(2)(A) extended from February 11, 1999,

back to August 11, 1995.

Petitioner is not entitled to credit for an amount paid or

deemed paid outside the look-back period determined under section

6511(b)(2)(A). Petitioner’s estimated tax payment is deemed paid

on the last day prescribed for filing the 1991 return (determined

without regard to any extension of time for filing such return).

Sec. 6513(b)(2); Baral v. United States, 528 U.S. 431, 435-436

(2000). The last day for filing his 1991 return was April 15,

1992, so that is the date petitioner’s estimated payment is

deemed paid for purposes of section 6511. As such, petitioner

paid no portion of the overpayment during the applicable look-

back period. Since no amounts were paid during the look-back

period, the ceiling limitation on the petitioner’s requested

credit is zero.

III. Equitable Relief
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Petitioner asserts a claim for equitable relief. The

December 14, 1998, “REQUEST FOR YOUR TAX RETURN” notice sent by

respondent listed a credit balance of $11,807 and asked for an

explanation as to how petitioner wanted the credit balance

handled. Petitioner asserts that respondent should therefore be

estopped from denying application of the credit for overpayment

to his tax liabilities for years subsequent to 1991.

We are bound by the strict terms of the statutory provisions

limiting refunds or credits for overpayments to those claimed

within the time limitations of section 6511. United States v.

Brockamp, 519 U.S. 347, 352-354 (1997)(finding that Congress did

not intend courts to read equitable exceptions into section

6511); Landry v. Commissioner, 116 T.C. at 62-63. Equitable

relief is therefore unavailable to petitioner.

We said in Allen v. Commissioner, 99 T.C. 475, 480 (1992),

affd. without published opinion 23 F.3d 406 (6th Cir. 1994), that

As is true in many of the cases in this field, the
result may seem harsh in view of an actual overpayment,
but * * * [taxpayer] failed to file his income tax
return more promptly, and the statute is precise. The
unhappy result for * * * [taxpayer] is the consequence
of a “problem of * * * [his] own creation”. * * * The
situation is not an unfamiliar one, and has been before
us in a variety of other circumstances. [Citations
omitted.]

Unfortunately for petitioner, these words apply with equal force

in his case. The bar against application of any part of his

overpayment of 1991 estimated tax to later years is a situation
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of his own making because of his leisurely attitude toward the

due date for filing his 1991 return, and the refund claim within

it.

We hold that respondent correctly determined that collection

efforts should proceed.

To reflect the foregoing,

Decision will be entered

for respondent.