T.C. Summary Opinion 2003-171
UNITED STATES TAX COURT
GARY R. GREULICH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15075-02S. Filed December 30, 2003.
Santo J. Bonanno, for petitioner.
Wendy D. Gardner, for respondent.
POWELL, Special Trial Judge: This case was heard pursuant
to the provisions of section 74631 of the Internal Revenue Code
in effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority.
1
Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code as amended.
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Respondent issued petitioner a Notice Of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
for unpaid Federal income taxes and related liabilities in the
following amounts:
Year Liability2
1991 $4,599.06
1993 5,885.73
Petitioner seeks to have a tax lien removed. The issue is
whether petitioner’s claim for credit or refund is limited by the
“look-back” period prescribed in section 6511(b)(2)(A).
Petitioner resided in Oakland, New Jersey, at the time the
petition was filed.
Background
The facts are not in dispute, and the issue is primarily one
of law.3 On April 15, 1993, petitioner filed Form 4868,
Application for Automatic Extension of Time to File U.S.
Individual Income Tax Return, and remitted a payment of $7,000 by
check. On the memo line of the check, petitioner noted his
Social Security number and “1040 92". Respondent granted an
extension to file until August 15, 1993, and subsequently further
extended the filing date to October 15, 1993. Petitioner did not
2
Amounts computed through July 22, 2002.
3
Sec. 7491, concerning burden of proof, has no bearing on
this case.
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timely file his 1992 return, and respondent credited the $7,000
payment to an “excess collections” account.
On May 13, 1998, petitioner filed his 1991, 1992, and 1993
returns. Respondent applied $2,658 of the $7,000 payment to
petitioner’s 1992 tax liability, and the remaining amount
remained in the “excess collections” account. On November 19,
1998, petitioner remitted an additional payment of $897.17.
Respondent applied that payment to petitioner’s 1991 tax
liability because his 1992 liability was paid in full.
On November 30, 1998, respondent issued petitioner, inter
alia, two letters entitled “Statement of Account”, requesting
additional payments for 1991 and 1993. In a letter to respondent
dated December 13, 1998, petitioner requested that the $7,897.17
that had been remitted to respondent be credited to his 1991 and
1993 liabilities. Respondent refused to comply with this
direction, and, with the exception of applying $3,555.17 of the
payments to the 1991 and 1992 liabilities discussed above, none
of the balance was credited to petitioner’s outstanding tax
liabilities.
On October 12, 2000, respondent issued petitioner a Notice
of Federal Tax Lien Filing and Your Right to a Hearing Under IRC
6320. Petitioner timely filed a Request for a Collection Due
Process Hearing. On August 22, 2002, the Appeals officer to whom
the matter was assigned issued petitioner the Notice of
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Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 concluding that the liabilities set forth above were
correct and unpaid and that the filing of the tax lien was
appropriate. The Appeals officer also determined that a
consideration of any offer in compromise was inappropriate
because petitioner had not filed tax returns for subsequent
years. Petitioner timely filed with this Court a petition for
review of the Appeals officer’s determinations. Petitioner
raised only the question of whether the liabilities had been
paid.
Discussion
Respondent did not issue petitioner notices of deficiency
for the taxable years at issue, and petitioner has not had an
opportunity to dispute whether such tax liabilities remain
unpaid. Petitioner may challenge the existence of the underlying
tax liabilities in this Court. See secs. 6320(c), 6330(c)(2)(B),
(d). Where the validity of the underlying tax liabilities is
properly placed at issue, this Court will review the matter on a
de novo basis. Sego v. Commissioner, 114 T.C. 604, 610 (2000);
Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).
Section 6511 contains two separate provisions to determine
the period of limitations for refund or credit claims. First,
section 6511(a) establishes a filing deadline. Second, section
6511(b)(2)(A) establishes a “look-back” period, which provides a
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ceiling limitation on the amount of an allowable refund or
credit. Commissioner v. Lundy, 516 U.S. 235, 239-240 (1996).
As applicable here, petitioner must file a claim for credit
or refund “of an overpayment * * * within 3 years from the time
the return was filed”. Sec. 6511(a). Respondent concedes that
petitioner timely filed a claim for credit on December 13, 1998.
If, however, the claim was filed “during the 3-year period * * *
the amount of the credit or refund shall 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.” Sec. 6511(b)(2)(A).
Respondent granted petitioner a 6-month extension to file
his 1992 return. Petitioner filed the claim for credit on
December 13, 1998. As a result, petitioner’s available credit
for the tax paid is limited to the portion of the tax paid within
3 years and 6 months before he filed the claim for credit, or
between June 13, 1995 and December 13, 1998. Petitioner’s
payment of $7,000 was deemed paid on April 15, 1993, see sec.
6513,4 long before the “look-back” period. See also Tedokon v.
4
By marking “1040 92" on the memo line of his check
petitioner intended the $7,000 remittance to constitute a tax
payment, and not a deposit in the nature of a cash bond. See
Risman v. Commissioner, 100 T.C. 191 (1993); Maxon v.
Commissioner, T.C. Memo. 1994-494; Gabelman v. Commissioner, T.C.
Memo. 1993-592, affd. 86 F.3d 609 (6th Cir. 1996). Respondent
treats remittances sent with a Form 4868 extension request as
remittances of estimated tax payments. See Action on Decision
1997-006 (May 5, 1997), 1997-1 C.B. 1.
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Commissioner, T.C. Memo. 2002-308; Lee v. Commissioner, T.C.
Memo. 2002-233. Petitioner’s claim to the balance in the “excess
collections” account was, therefore, time barred.
The result may appear somewhat harsh, but it must be pointed
out that the result flows from petitioner’s actions in not timely
filing his tax returns. All of this could have been avoided if
petitioner had followed the statutory provisions for filing
returns. Those provisions are not obscure. We sustain
respondent’s determination.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.