                         T.C. Memo. 1996-314



                       UNITED STATES TAX COURT



               PRISCILLA B. BADGER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15104-94.                        Filed July 11, 1996.



     Priscilla B. Badger, pro se.

     John T. Lortie, for respondent.



                         MEMORANDUM OPINION


     HAMBLEN, Judge:    By two separate statutory notices of

deficiency each dated May 18, 1994, respondent determined

deficiencies in the amounts of $19,124 and $18,956 in

petitioner's 1990 and 1991 Federal income tax, respectively.

Respondent further determined additions to tax for failures to
                                - 2 -

file individual tax returns for the tax years 1990 and 1991 under

section 6651(a) in the amounts of $174.75 and $195.25,

respectively.    Unless otherwise indicated, all section references

are to the Internal Revenue Code in effect for the 1990 and 1991

taxable years, and all Rule references are to the Tax Court Rules

of Practice and Procedure.

       Respondent now concedes that no deficiencies and no

additions to tax are due from petitioner for 1990 and 1991, but

petitioner seeks a refund for her overpayments of 1990 and 1991

Federal income tax.    The issue for decision is whether petitioner

is entitled to a refund or credit for overpayments of her 1990

and 1991 Federal income tax, or whether the statutorily imposed

time limitations of sections 6511 and 6512 preclude petitioner

from obtaining any portion of her 1990 and 1991 overpayments.

                             Background

       This case was submitted fully stipulated pursuant to Rule

122.    The stipulation of facts and the attached exhibits are

incorporated by this reference, and the facts contained therein

are found accordingly.    Priscilla B. Badger (petitioner) resided

in Boca Raton, Florida, at the time the petition was filed in

this case.

       Petitioner paid $18,425 and $18,125 of Federal income

withholding tax during the taxable years 1990 and 1991,

respectively.    On May 18, 1994, respondent mailed to petitioner

two timely statutory notices of deficiency, one for the taxable
                               - 3 -

year 1990 and one for the taxable year 1991.   As of May 18, 1994,

petitioner had not filed income tax returns or claims for refund

for taxes withheld for either of the tax years 1990 or 1991.

During the period from May 18, 1992, through May 18, 1994,

petitioner made no payments of tax and received no credits for

withheld taxes or other credits for the tax years 1990 and 1991.

Petitioner filed her petition with this Court on August 22, 1994.

Subsequently, on October 20, 1994, petitioner filed her Federal

individual income tax returns for the tax years 1990 and 1991.

     The parties now agree that petitioner's total Federal income

tax liabilities for the 1990 and 1991 taxable years are

$16,672.62 and $17,121.04, respectively.   As a result of Federal

income tax withholding from her wages, petitioner paid taxes of

$18,425 and $18,125 during the taxable years 1990 and 1991,

respectively.   These amounts are deemed to have been paid on

April 15, 1991 and 1992, respectively.   Accordingly, petitioner

overpaid her 1990 and 1991 Federal individual income taxes by

$1,752.38 and $1,053.96, respectively.

     Petitioner claims that she is entitled to a determination of

overpayment of her 1990 and 1991 Federal individual income taxes,

and that the overpayments should be refunded to her.   Respondent

contends that petitioner is not entitled to a determination of

overpayment because of the jurisdictional limitations of sections

6511 and 6512(b).
                                    - 4 -

     We hold that petitioner is not entitled to a determination

of overpayment, notwithstanding that she overpaid her 1990 and

1991 Federal individual income taxes.

                               Discussion

     In Commissioner v. Lundy, 516 U.S. ____, ____; 116 S.Ct.

647, 652 (1996), the Supreme Court clarified the Tax Court's

jurisdiction under sections 6512(b)1 and 65112 to determine the

     1
      Sec. 6512(b) provides in relevant part:

          (b) Overpayment Determined by Tax Court.--

               (1) Jurisdiction to Determine.--Except as
     provided by paragraph (3) * * *, if the Tax Court finds
     that there is * * * a deficiency but that the taxpayer
     has made an overpayment of such tax, the Tax Court
     shall have jurisdiction to determine the amount of such
     overpayment, and such amount shall, when the decision
     of the Tax Court has become final, be credited or
     refunded to the taxpayer.

                       *   *    *    *   *   *   *

               (3) Limit on amount of credit or refund.--No
     such credit or refund shall be allowed or made of any
     portion of the tax 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


     2
      Sec. 6511 provides in relevant part:

          (a) Period of Limitation on Filing Claim.--Claim
     for credit or refund of an overpayment of any tax
                                                   (continued...)
                              - 5 -

existence and amount of any overpayment of tax when a taxpayer

had not filed a return prior to the time the Commissioner mailed

a statutory notice of deficiency.   The law is clear that when a

taxpayer failed to file a tax return or claim for refund prior to

the time the notice of deficiency was mailed, the taxpayer's

credit or refund generally is limited to those taxes paid within



     2
      (...continued)
     imposed by this title in respect of which tax the
     taxpayer is required to file a return shall be filed by
     the taxpayer 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. * * *

          (b) Limitation on Allowance of Credits and
     Refunds.--

               (1) Filing of Claim Within Prescribed
     Period.--No credit or refund shall be allowed or made
     after the expiration of the period of limitation
     prescribed in subsection (a) for the filing of a claim
     for credit or refund, unless a claim for credit or
     refund is filed by the taxpayer within such period.

               (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. * * *

                    (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.
                               - 6 -

the 2-year "look-back period" prior to the date of the mailing of

the notice of deficiency, as prescribed by section 6511(b)(2)(B).

Id.

      Pursuant to section 6512(b)(3)(B), petitioner is deemed to

have filed a claim for credit or refund on May 18, 1994, the date

the notices of deficiency were mailed.    Accordingly, under the 2-

year look-back period of section 6511(b)(2)(B), petitioner would

be entitled to a refund of any overpayments of her tax made on or

after May 18, 1992, for tax years 1990 and 1991.   However,

because section 6513(b)(1) deems the tax withheld from

petitioner's wages during 1990 and 1991 to have been paid on

April 15, 1991 and April 15, 1992, respectively, no portion of

the tax was paid during the 2-year look-back period.

      Consequently, we must hold that petitioner is not entitled

to a decision that she has an overpayment of her 1990 or 1991

Federal income tax, and, hence, no portion of the amounts

withheld from petitioner's wages during 1990 and 1991 may be

refunded or credited as an overpayment.   Petitioner made no

payments during the 2-year look-back period preceding the date

the statutory notices of deficiencies were mailed, and she is

barred by section 6511(b)(2)(B) from obtaining any portion of her

1990 or 1991 overpayments.   Although this result may seem harsh,

it follows directly from petitioner's failure, through her own

neglect, to fulfill her obligations to file a timely return or

otherwise to exercise her rights within the time period
                                 - 7 -
statutorily mandated by section 6511(b)(2)(B).          We have

considered petitioner's arguments and find them unpersuasive.

     To reflect the foregoing,


                                         Decision will be entered for

                    petitioner as to the

                    deficiency

                                         and additions to tax, and

                                         petitioner is not entitled to

.                                        credit or refund of

                                         overpayment.
