T.C. Summary Opinion 2005-19
UNITED STATES TAX COURT
THOMAS FRANCIS MORRIS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10146-04S. Filed February 23, 2005.
Thomas Francis Morris, pro se.
Nina P. Ching, for respondent.
PANUTHOS, Chief Special Trial Judge: This case was heard
pursuant to the provisions of section 7463 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. Unless otherwise
indicated, subsequent section references are to the Internal
Revenue Code in effect for the year in issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
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Respondent determined that petitioner is liable for a
deficiency in Federal income tax for the taxable year 1999 in the
amount of $12,410. Following respondent’s concession that
petitioner overpaid his 1999 tax by $5,783, the issue for
decision is whether the overpayment is time barred by section
6511(b)(2).
Some of the facts have been stipulated, and they are so
found. The stipulation of facts and exhibits are incorporated
herein by this reference. At the time of filing the petition,
petitioner resided in Nashua, New Hampshire.
During 1999 petitioner was employed by Alpha Processor, Inc.
and received salary in the amount of $63,139. The salary was
subject to withholding in the amount of $15,127. Petitioner did
not file a Federal income tax return for 1999. By letter dated
December 1, 2003, respondent advised petitioner that respondent
had not received petitioner’s return and calculated a tax based
on information provided by third parties. On March 12, 2004,
respondent issued a notice of deficiency to petitioner
determining a deficiency for the taxable year 1999.1 A timely
petition was filed.
1
Respondent also issued a notice of deficiency dated Mar.
26, 2004. The notice is a duplicate of the Mar. 12, 2004,
notice. It appears that the notice was issued in error, and in
any event a timely petition was filed in response to the March 12
notice, and accordingly the March 26 notice is of no consequence.
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At some later point, petitioner presented information with
respect to itemized deductions, and the parties appear to agree
that the deficiency is $9,344 and that there was excess
withholding for 1999 in the amount of $5,783.
Because the parties agree that petitioner’s withholding
credits exceed the amount of tax due as redetermined, the
question is whether petitioner is entitled to a refund of an
overpayment in the amount of $5,783 for the 1999 taxable year.
The only issue related to this overpayment is whether it is time
barred by section 6511(b)(2).
Petitioner claims that he is entitled to a determination of
an overpayment of his 1999 Federal income tax and that the
overpayment should be refunded to him. Respondent contends that
petitioner is not entitled to a refund of an overpayment because
of the limitations of sections 6511 and 6512(b). In response,
petitioner asserts that respondent deliberately timed the notice
of deficiency so as to prevent petitioner from obtaining credit
for the overpayment of tax.
Pursuant to section 6512(b)(1), we have jurisdiction to
determine the existence and amount of any overpayment of tax to
be credited or refunded for years that are properly before us.
However, if a taxpayer did not file a return before the notice of
deficiency was mailed, the amount of the credit or refund is
limited to the taxes paid during the 2-year period prior to the
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date the deficiency notice was mailed. See secs. 6511(b)(2),2
6512(b)(3)(B); Commissioner v. Lundy, 516 U.S. 235, 243-244
(1996); Hart v. Commissioner, T.C. Memo. 1999-186; Stevens v.
Commissioner, T.C. Memo. 1996-250.
In general a taxpayer bears the burden of proof. See Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). The burden
2
Sec. 6511(a) generally provides that a claim for credit
or refund of an overpayment of tax must be filed by the taxpayer
within 3 years from the time the return was filed or within 2
years from the time the tax was paid, whichever period expires
later. Sec. 6511(a) also expressly provides that, if no return
is filed, the claim must be filed within 2 years from the time
the tax was paid. Sec. 6511(b)(2) provides limitations on the
amount of any credit or refund as follows:
(2) Limit on amount of credit or refund.--
(A) Limit where claim filed within 3-year
period.--If the claim was filed by the taxpayer during
the 3-year period prescribed in subsection (a), 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. If the tax was required to be paid by means of
a stamp, the amount of the credit or refund shall not
exceed the portion of the tax paid within the 3 years
immediately preceding the filing of the claim.
(B) Limit where claim not filed within 3-year
period.--If the claim was not filed within such 3-year
period, the amount of the credit or refund shall not
exceed the portion of the tax paid during the 2 years
immediately preceding the filing of the claim.
(C) Limit if no claim filed.--If no claim was
filed, the credit or refund shall not exceed the amount
which would be allowable under subparagraph (A) or (B),
as the case may be, if claim was filed on the date the
credit or refund is allowed.
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as to factual issues may shift to the Commissioner under certain
prescribed circumstances. Sec. 7491(a). In the present case,
there is no dispute with respect to any factual issues, and
therefore section 7491(a) is not applicable.
The notice of deficiency reflects tax payments petitioner
made for 1999 as withholding credits.3 Such payments are deemed
to have been made as of April 15, 2000. See sec. 6513(b)(1).
Since the withholding taxes were paid more than 2 years before
the notice of deficiency was mailed, March 12, 2004, petitioner
is not entitled to a refund of any part of an overpayment for
1999.
We do not accept petitioner’s assertion that respondent
waited to notify petitioner of the failure to file a return, so
as to preclude the refund of the overpayment. There is nothing
in this record reflecting such motivation by respondent, and in
any event respondent is permitted to examine tax years, determine
a deficiency, and make an assessment within the applicable period
of limitations provided under section 6501. In a situation where
a taxpayer does not file a Federal income tax return, respondent
may determine a deficiency and assess a tax at any time. Sec.
6501(c)(3). The inability of petitioner to obtain a refund of
3
We note that the determination of a statutory deficiency
does not take such amount into account. See sec. 6211(b)(1).
However, the withholding will be credited and applied against the
deficiency.
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his overpayment is the direct result of his failure to file a
return and pursuant to the application of the above-described
provisions of the Internal Revenue Code.
We therefore hold that the statutorily imposed time
limitations of sections 6511 and 6512 bar us from determining
that petitioner is entitled to a refund with respect to his 1999
tax. See Commissioner v. Lundy, supra; Badger v. Commissioner,
T.C. Memo. 1996-314; Stevens v. Commissioner, supra.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent as to the
deficiency in the amount of
$9,344 and for respondent as
to the overpayment.