                         T.C. Memo.   2000-70



                       UNITED STATES TAX COURT



                    MITCHELL G. MANN, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No.    17895-97.               Filed March 3, 2000.



     Mitchell G. Mann, pro se.

     James J. Posedel, for respondent.



                          MEMORANDUM OPINION


     LARO, Judge:    This case is before the Court fully

stipulated.    See Rule 122, Tax Court Rules of Practice and

Procedure.    Respondent determined a $9,477 deficiency in

petitioner’s 1990 Federal income tax, additions thereto of $1,119

and $620 under sections 6651(a)(1) and 6654, respectively, and a
                                - 2 -

$1,895 accuracy-related penalty under section 6662(a).     Following

respondent’s concession that petitioner has no Federal income tax

liability for 1990, we must decide whether petitioner may receive

a refund for that year.   We hold he may not.    Unless otherwise

indicated, section references are to the applicable versions of

the Internal Revenue Code.

                             Background

     Petitioner never filed a 1990 Federal income tax return.

Respondent issued to petitioner a notice of deficiency for that

year on May 21, 1997,1 and petitioner, while he resided in San

Diego, California, timely petitioned the Court to redetermine

respondent’s determinations shown therein.

     On or about April 15, 1991, petitioner filed a Form 4868,

Extension Of Time to File U.S. Individual Tax Returns, with the

Commissioner and enclosed a $5,000 payment.     Petitioner later

filed with the Commissioner a second request for an extension of

time to file his 1990 tax return.   The Commissioner granted both

requests.   On February 6, 1992, petitioner paid another $25

towards his tax liability for 1990.

                             Discussion

     Petitioner argues that he is entitled to a $5,000 refund for

1990 because he tendered that amount to the Commissioner as a

deposit.    Respondent argues that petitioner tendered the $5,000

     1
       The parties stipulated incorrectly that the notice was
issued on May 27, 1997.
                                 - 3 -

to the Commissioner as a payment of tax for 1990, and, hence,

that he may not receive a refund of any of that amount because it

was paid more than 2 years before respondent issued the notice of

deficiency.

     We agree with respondent.    Petitioner must demonstrate that

his claim for refund is timely.    See Flagg v. Commissioner,

T.C. Memo. 1997-297.    Although section 6512(b)(1) bestows

jurisdiction on this Court to determine the existence and amount

of any overpayment of tax to be refunded for a year before us,

section 6512(b)(3)(B) prohibits us in this case from awarding a

refund unless we determine that the refunded amount was paid

"within the period which would be applicable under section

6511(b)(2) * * * 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".2   See also Commissioner v. Lundy, 516

U.S. 235, 241-242 (1996).    The relevant provision of section

6511(b)(2) provides that when a claim for refund is outside the

3-year period of section 6511(a), the amount of the refund may

not exceed the amount of tax paid within the 2 years preceding

the claim for refund.    See sec. 6511(b)(2)(B).   Section 6511(a)

states that a claim for refund generally must be made within 3


     2
       The Taxpayer Relief Act of 1997, Pub. L. 105-34, sec.
1282(a), 111 Stat. 788, 1037-1038, amended sec. 6513(b)(3) for
years ending after Aug. 5, 1997.
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years from the time the return was filed or if no return was

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

paid.

     Petitioner tendered the $5,000 to the Commissioner with a

Form 4868.   The Court of Appeals for the Ninth Circuit, the court

to which an appeal in this case lies, has held that a remittance

to the Commissioner in such a situation is a payment of estimated

tax and not a deposit.    See Ott v. United States, 141 F.3d 1306

(9th Cir. 1998).   We hold likewise.     See Golsen v. Commissioner,

54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971); see also

Baral v. United States,       U.S.        (2000) (quarterly estimated

tax payment was a payment of tax and not a deposit).       Because

petitioner’s payment of the $5,000 is considered paid on April

15, 1991, see sec. 6513(b)(2), petitioner is not entitled to

receive a refund of any of that amount, see Commissioner v.

Lundy, supra.

                                             Decision will be entered

                                        stating that there is no

                                        deficiency, addition to tax,

                                        or accuracy-related penalty

                                        due from petitioner and there

                                        is no overpayment due to

                                        petitioner for 1990.
