                        T.C. Memo. 2000-113



                     UNITED STATES TAX COURT



   BOBBY B. SMATHERS AND KATHLEEN N. SMATHERS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5425-98.               Filed March 30, 2000.



     Bobby B. Smathers and Kathleen N. Smathers, pro sese.

     David Delduco, for respondent.



                         MEMORANDUM OPINION



     THORNTON, Judge:    By separate notices of deficiency dated

December 18, 1997, respondent determined deficiencies in and

additions to tax relating to petitioner husband’s 1991, 1993,

1994, 1995, and 1996 Federal income taxes, and petitioner wife’s

1993, 1994, 1995, and 1996 Federal income taxes.
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        After concessions,1 the only issues for decision are:

     (1) Whether we have authority under section 6512(b) to award

a refund of petitioners’ $2,045 overpayment for taxable year

1994.       We hold that we do not.

     (2) Whether petitioners are entitled to a carryover credit

from taxable year 1990 to taxable year 1991 in excess of the

$152 that respondent has allowed.         We hold that they are not.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the taxable years in

issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

     The parties have stipulated some of the facts, which are

incorporated by this reference.         When they filed their petition,

petitioners resided in Buford, Georgia.

     Respondent received petitioners’ 1990, 1991, and 1992 joint

Federal income tax returns on or about September 29, 1993, April

6, 1995, and June 11, 1996, respectively.2        In addition,


        1
       Respondent concedes that petitioners have made
overpayments for taxable years 1991, 1994, and 1995 in the
amounts of $611, $2,045, and $26, respectively, and that
petitioners are entitled to refunds of their 1991 and 1995
overpayments, subject to offset for other amounts that might be
due to the United States. Petitioners concede that they owe
deficiencies of $778 and $674 for taxable years 1993 and 1996,
respectively. Respondent also concedes the additions to tax
under secs. 6651(a)(1) and 6654 for both petitioners.
        2
       Petitioners filed a Form 4868, Application for Automatic
Extension of Time to File U.S. Individual Income Tax Return for
                                                   (continued...)
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according to respondent’s records, petitioners did not file their

joint returns for taxable years 1993, 1994, 1995, and 1996 until

they presented them to respondent’s Appeals Office on

January 14, 1999.

1.   Authority To Award a Refund of Petitioners’ 1994 Overpayment

     As a result of excess Federal income tax withholdings,

petitioners overpaid their 1994 Federal income taxes by $2,045.

Respondent argues that we lack authority to award a refund.

     Generally, this Court has jurisdiction to award a refund for

overpayment of taxes that the taxpayer paid within one of two

applicable look-back periods:   either (1) the 2 years before

respondent issued the notice of deficiency, or (2) the 3 years

before the taxpayer filed his or her return.   See secs.

6511(b)(2)(A) and (B), 6512(b)(3)(B); Commissioner v. Lundy, 516

U.S. 235, 241-242 (1996).   If the taxpayer does not file a return

before the notice of deficiency is issued, the 2-year look-back

period applies.   See secs. 6511(b)(2)(B), 6512(b)(3);

Commissioner v. Lundy, supra at 243.

      Petitioners assert that they filed their 1994 joint Federal

income tax return on April 6, 1995, before the issuance of the

notices of deficiency on December 18, 1997.    Respondent, however,




     2
      (...continued)
1992, on April 14, 1993. When respondent received petitioners’
1992 joint Federal income tax return, it was untimely.
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has no record of receiving petitioners’ 1994 return before

January 14, 1999.

     Petitioners presented no documentation, such as a registered

or certified mail receipt, as to the filing of their 1994 return.

Petitioner husband’s testimony about mailing petitioners’ 1994

joint return was vague, as he was unable to recall even whether

he mailed it from North Carolina or Georgia.   Moreover, the

record shows that petitioners are chronic late filers of their

Federal income tax returns, which weighs against their

credibility in this regard.   We conclude and hold that

petitioners have failed to prove that they mailed their 1994

joint Federal income tax return before the notices of deficiency

were issued.

     Consequently, the 2-year look-back period of section 6511

applies, and petitioners are entitled to a refund only of taxes

paid within the 2 years immediately prior to the date the notices

of deficiency were mailed.    See secs. 6511(a) and (b)(2)(B);

Commissioner v. Lundy, supra at 243.

     Petitioners’ 1994 Federal tax withholdings are deemed paid

on April 15, 1995, see secs. 6513(a) and (b)(1), more than 2

years before December 18, 1997, when respondent issued the

notices of deficiency.   Thus, we lack authority to award

petitioners a refund of their 1994 overpayment.   See id.
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2.   Carryover Credit From Taxable Year 1990 to Taxable Year 1991

     On their late-filed 1990 Federal income tax return,

petitioners showed a $7,631 overpayment, which they requested be

applied to their 1991 estimated tax.   Consistent with this

position, on their late-filed 1991 Federal income tax return,

petitioners claimed $7,631 as “1991 estimated tax payments and

amount applied from 1990 return”.

     Respondent’s certificate of assessments and payments for

petitioners’ 1990 taxable year, by contrast, shows that

petitioners overpaid their 1990 joint Federal income taxes by

only $1,028, $876 of which respondent transferred to cover

petitioners’ unpaid 1989 Federal income tax liabilities,

additions to tax, and interest.   Respondent transferred a

carryover credit of the remaining overpayment of $152 from

taxable year 1990 to petitioners’ 1991 accounts.   Respondent

contends that petitioners are entitled to no additional carryover

credit from 1990 to 1991.

     The difference between the $7,631 overpayment claimed by

petitioners on their 1990 return and the $1,028 overpayment

reflected in respondent’s records is attributable to $6,603

claimed on petitioners’ 1990 joint Federal income tax return as

“1990 estimated tax payments and amount applied from 1989
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return”.   Respondent’s records do not reflect any amount of 1990

estimated tax payments; nor do they reflect any carryover credit

from 1989 to 1990.   To the contrary, as previously discussed,

respondent carried back a portion of petitioners’ 1990

overpayment to satisfy petitioners’ unpaid 1989 Federal tax

liabilities.

      Petitioners have failed to establish that they are entitled

to a carryover credit from 1990 to 1991 in excess of $152.     See

Rule 142(a).   In particular, there is no evidence in the record

that petitioners actually made 1990 estimated tax payments or had

any amount available as a carryover from taxable year 1989, to

give rise to the claimed carryover from taxable year 1990.     As

evidence, petitioners offered only petitioner husband’s very

general and uncorroborated testimony, which we find inadequate to

substantiate their claims.   Cf. Geiger v. Commissioner, 440 F.2d

688, 689-690 (9th Cir. 1971), affg. per curiam T.C. Memo.

1969-159; Barber v. Commissioner, T.C. Memo. 1999-260.

Accordingly, we sustain respondent’s determination on this issue.

     To reflect the foregoing and concessions by the parties,



                                            Decision will be entered

                                       under Rule 155.
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