                  T.C. Summary Opinion 2003-173



                     UNITED STATES TAX COURT



                 STEVEN JAY WOLK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11536-02S.            Filed December 30, 2003.


     Steven Jay Wolk, pro se.

     Lorianne D. Masano, 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.
                              - 2 -

     Respondent issued a Notice Of Determination Concerning

Collection Action(s) Under Section 6320 to petitioner for unpaid

Federal income taxes and related liabilities in the following

amounts:

               Year                   Liability1

               1991                   $6,070.14
               1992                    2,360.67
               1994                         .28
               1995                         .54
               1996                    1,557.39
     1
        Amounts computed through May 31, 2002. The amounts for
the 1991, 1992, and 1996 taxable years comprise unpaid Federal
income taxes, additions to tax for failure to timely file Federal
income tax returns and failure to pay Federal income taxes under
sec. 6651(a)(1) and (2), and interest.

     The unpaid liabilities for the 1994 and 1995 taxable years
reflect unpaid interest calculated for 2 days. Respondent levied
upon petitioner’s bank account on Sept. 15, 1998, for payment of
petitioner’s 1994 and 1995 tax liabilities and interest
calculated through that date. Respondent received payment on
Sept. 18, 1998. Petitioner did not raise any issue with respect
to the unpaid interest amounts for 1994 and 1995 in the petition
filed with this Court, and, thus, these years are not before the
Court.

     After concessions,2 the issues are (1) whether the period of

limitations on assessment bars respondent from collecting the

1991 and 1992 tax liabilities, (2) whether respondent correctly

issued refund checks to petitioner instead of applying an

overpayment to petitioner’s 1990 estimated tax payments, and (3)



     2
         Petitioner concedes the amount of Federal income taxes
due and the additions to tax for failure to timely file Federal
income tax returns under sec. 6651(a)(1) for the 1991, 1992, and
1996 taxable years.
                               - 3 -

whether petitioner is liable for the additions to tax under

section 6651(a)(2) for failure to timely pay the 1991, 1992, and

1996 tax liabilities.   Petitioner resided in Maitland, Florida,

at the time the petition was filed.

                            Background

1991, 1992, and 1996 Federal Income Tax Returns

     Petitioner filed his 1991 return on January 6, 1999.

Respondent assessed petitioner’s reported tax due of $2,216 on

March 15, 1999.   The 1991 return bears a date stamp of “February

10, 1993" next to the signature line on the return.

     Petitioner filed his 1992 return on September 28, 1998.

Respondent assessed petitioner’s reported tax liability of $817

on November 30, 1998.   The 1992 return is not a part of the

record.

     As to the 1996 taxable year, petitioner filed Form 4868,

Application for Automatic Extension of Time to File U.S.

Individual Income Tax Return, on April 15, 1997, and remitted a

payment of $1,000 to respondent.   Petitioner filed his 1996

return on April 23, 2000, and respondent assessed the reported

tax due of $1,575 on November 6, 2000.   Petitioner made no

additional payments for the 1991, 1992, and 1996 taxable years

because he contended that an overpayment from 1987 applied to the

tax liabilities for those years.
                                - 4 -

1987 Overpayment

     We begin by noting that the facts as presented surrounding

the 1987, 1989, 1990, 1991, and 1992 taxable years are unclear,

and at times, contradictory.    By letter dated July 30, 1992,

petitioner sent respondent a duplicate copy of his 1989 return,

which respondent filed that date, and a copy of Form 1045,

Application for Tentative Refund, claiming a net operating loss

(NOL) for that year to be carried back to the 1987 taxable year.

This generated an overpayment of tax in 1987 of $3,341.

Petitioner asserts that these documents were previously filed in

November 1990, and that he never received the refund.    Thus, he

filed Form 1040X, Amended U.S. Individual Income Tax Return,

requesting respondent to apply the unpaid refund to his 1990

estimated tax payments.

     By the same letter, petitioner also filed his 1990 return

claiming an NOL and requested that respondent carryback that NOL

to 1987.    This generated an additional overpayment in 1987 of

$3,300.3    Petitioner also requested that respondent apply this

overpayment as an estimated tax payment for 1990 and for “later

years.”    As a result, the 1987 overpayment totaled $6,641, which

petitioner, on his 1990 return, applied as estimated tax

payments.


     3
         Petitioner claims the overpayment is $3,256. The reason
for the $44 discrepancy is unclear from the record, and we will
apply respondent’s calculations.
                                 - 5 -

     Upon receipt of these documents, respondent applied $1,829

and $817 of the 1987 overpayment to petitioner’s 1989 and 1990

tax liabilities, respectively.    The rest, $3,995, remained as an

overpayment from 1987.    As a result, respondent issued two refund

checks to petitioner:    (1) $780.544 on November 30, 1992, and (2)

$3,3005 on December 7, 1992.   Instead of negotiating these refund

checks, petitioner placed them in a file cabinet.    When the time

in which the checks could be negotiated expired, respondent

issued a third check to petitioner on April 18, 1994, in the

amount of $4,080.54.    Again petitioner failed to timely negotiate

the third refund check.    Respondent issued a fourth refund check

on February 5, 1996, in the amount of $5,497.36,6 which

petitioner negotiated.

     On June 29, 2001, respondent issued to 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 June 5, 2002, respondent issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

to petitioner determining, inter alia, that all legal and




     4
         Balance remaining from the $3,341 overpayment resulting
from the 1989 NOL, minus the 1989 and 1990 tax liabilities, plus
interest.
     5
          The overpayment resulting from the 1990 NOL.
     6
          The $3,995 overpayment plus interest.
                                - 6 -

procedural requirements were met and that the collection action

should proceed.

                             Discussion

Period of Limitations

     Petitioner argues that the period of limitations on

assessment expired for the 1991 and 1992 taxable years.     We

review respondent’s determinations de novo, as the period of

limitations constitutes a challenge to the underlying tax

liabilities.    See MacElvain v. Commissioner, T.C. Memo. 2000-320.

The period of limitations is an affirmative defense which must be

pled and established by the taxpayer.     Knollwood Meml. Gardens v.

Commissioner, 46 T.C. 764, 792 (1966); Gatto v. Commissioner, 20

T.C. 830, 832 (1953).7   As pertinent here, an assessment of taxes

must be made “within 3 years after the return was filed (whether

or not such return was filed on or after the date prescribed)”.

Sec. 6501(a).

     Respondent assessed petitioner’s 1991 and 1992 taxes on

March 15, 1999, and November 30, 1998, respectively.    In order to

prevail, petitioner must establish that he filed his 1991 and

1992 returns before March 15, 1996, and November 30, 1995,

respectively.




     7
         Sec. 7491(a), concerning the burden of proof, is
inapplicable because petitioner has not satisfied its
requirements.
                                - 7 -

     Respondent’s “Certificate of Official Record” indicates,

inter alia, that petitioner filed his 1991 return on January 6,

1999.    While petitioner provided a copy of his 1991 return

containing a date stamp of February 10, 1993, next to the

signature line, he failed to provide any evidence of mailing or

delivery.8   A date stamp on a return, without any evidence of

mailing or other delivery, does not satisfy petitioner’s burden.

     As to the 1992 return, which is not part of the record,

respondent’s “Certificate of Official Record” indicates, inter

alia, that petitioner filed his 1992 return on September 28,

1998.    Petitioner testified that he delivered his 1992 and 1993

returns to respondent’s Maitland, Florida, Service Center on

November 9, 1995.    Petitioner’s testimony, without credible

supporting documentary evidence, is not enough to satisfy his

burden of proof.9   See Hradesky v. Commissioner, 65 T.C. 87, 89-

90 (1976), affd. 540 F.2d 821 (5th Cir. 1976).    Accordingly, we

find that the period of limitations does not bar collection of

petitioner’s 1991 and 1992 tax liabilities.




     8
         If a taxpayer sends a return “by registered mail or
certified mail, proof that the * * * [return] was properly
registered or that a postmark certified mail sender’s receipt was
properly issued * * * shall constitute prima facie evidence that
the * * * [return] was delivered”. Sec. 301.7502-1(d), Proced. &
Admin. Regs.
     9
         According to respondent’s “Certificate of Official
Record”, petitioner’s 1993 return was filed on Nov. 16, 1995.
                               - 8 -

Application of the 1987 Overpayment

     The crux of petitioner’s argument is that if respondent had

applied the 1987 overpayment, generated from the 1989 and 1990

NOL’s, “as an estimated tax payment toward any tax liability due

on my 1990 return and later years” as he requested in the July

30, 1992, letter, the tax liabilities for 1991, 1992, and 1996

would have been paid.   We review respondent’s determination de

novo, as the validity of the underlying tax liability, “i.e., the

amount unpaid after application of credits to which petitioner is

entitled,” is properly at issue.    See Landry v. Commissioner, 116

T.C. 60, 62 (2001).

     Section 6401(b)(1) provides:   “If the amount allowable as

credits * * * exceeds the tax imposed * * * the amount of such

excess shall be considered an overpayment.”    The Commissioner may

first credit any overpayment against “any outstanding liability

for any tax * * * owed by the taxpayer making the overpayment”.

Sec. 301.6402-3(a)(6)(i), Proced. & Admin. Regs.    Any remaining

overpayment may be applied to the estimated tax but only “for the

taxable year immediately succeeding the taxable year for which

such return (or amended return) is filed.”     Sec. 301.6402-

3(a)(5), Proced. & Admin. Regs. (emphasis added); see also sec.

6402(b).   The Commissioner shall refund any balance of the

overpayment to the taxpayer.   Sec. 6402(a).
                               - 9 -

     For the 1989 taxable year, respondent correctly applied the

1987 overpayment of $3,341, generated from the NOL in 1989, to

petitioner’s 1989 tax liability of $1,829.    The balance of the

1987 overpayment could not be applied to petitioner’s 1990

estimated tax payments because petitioner filed his 1989 return

on July 30, 1992,10 long past the 1990 taxable year during which

the estimated tax payments would be due.    See sec. 6654(c)(2).

     As to the 1990 taxable year, petitioner, in completing his

1990 return, applied the entire 1987 overpayment of $6,64111 as

estimated tax payments in 1990.   As previously discussed,

respondent could not apply the portion of the 1987 overpayment

generated from the 1989 NOL to petitioner’s 1990 estimated tax

payments.   As to the portion of the 1987 overpayment arising from

the 1990 NOL, respondent correctly applied that portion of the

1987 overpayment to petitioner’s 1990 tax liability of $817.    It

is nonsensical, as petitioner requested, to apply the remaining

balance of the 1987 overpayment (generated from the 1990 NOL) to

petitioner’s 1990 estimated tax payments.    Any overpayment



     10
         Petitioner argues that he filed his 1989 return on Nov.
26, 1990. This issue was not addressed at trial, and we will not
decide it. In any event, if we were to accept petitioner’s
filing date, petitioner still filed his 1989 return too late, as
the deadline for the third installment of his 1990 estimated tax
payment had passed. See sec. 6654(c)(2).
     11
         Petitioner claimed $6,611 as estimated tax payments in
1990. The reason for the $30 discrepancy is unclear from the
record, and we will apply respondent’s calculations.
                               - 10 -

generated in 1990 could only be applied to petitioner’s 1991

estimated tax payments, which is the tax year immediately

succeeding the taxable year in which the 1990 return was filed.

See Stephenson v. Commissioner, T.C. Memo. 1995-33; Stephenson v.

Commissioner, T.C. Memo. 1995-32.     When respondent could not

apply the remaining 1987 overpayment to petitioner’s 1990

estimated tax liability, respondent correctly issued petitioner

the refund checks.   Accordingly, we sustain respondent on this

issue.

Additions to Tax for Failure To Timely Pay

     We review respondent’s determination de novo and sustain

respondent on this determination.12     If a Federal income tax is

not timely paid, “there shall be added to the amount shown as tax

on such return 0.5 percent of the amount of such tax” for each

month or fraction thereof, but “not exceeding 25 percent” “unless

it is shown that such failure is due to reasonable cause and not

due to willful neglect”.    Sec. 6651(a)(2).   Petitioner argues

that the additions to tax should not be imposed because, if

respondent had applied the overpayments to petitioner’s 1990

estimated tax payments as he requested, the Federal income taxes

due would have been paid.    But the fact remains that petitioner

did not timely file his returns, and he has conceded his



     12
         Respondent has satisfied his burden of production under
sec. 7491(c).
                              - 11 -

liability for the additions to tax under section 6651(a)(1).

Moreover, as discussed, respondent previously had properly

applied the overpayment to petitioner’s 1989 and 1990 tax

liabilities and refunded the remainder to him.

     In closing, we note that petitioner is an attorney and has a

history of not timely filing tax returns and of apparently

ignoring any communications from respondent, including not

opening envelopes with refund checks.   This is the crux of the

dispute before the Court.   Under these circumstances,

petitioner’s claim that he is an abused taxpayer has a decidedly

hollow ring.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                         Decision will be entered

                                    for respondent.
