                  T.C. Summary Opinion 2004-157



                     UNITED STATES TAX COURT



                ROY L. HUTCHINSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11934-03S.           Filed November 15, 2004.


     Roy L. Hutchinson, pro se.

     Marion K. Mortensen, 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 and additions to tax as follows:

                                         Additions to Tax
        Year   Deficiency   Sec. 6651(a)(1)   Sec. 6651(a)(2) Sec. 6654(a)
        1999    $9,218         $873.45            $524.07        $157.95

        After concessions,1 the issue for decision is whether

petitioner is entitled to an overpayment for the taxable year

1999.       This in turn is dependent upon whether petitioner filed a

Federal income tax return for the taxable year 1999.

Background

        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 at Layton, Utah.

        Petitioner and his wife Mickey C. Hutchinson (hereinafter

sometimes Mrs. Hutchinson) filed a joint Federal income tax

return for the taxable year 1997 on April 19, 2000.              Petitioner

and his wife assert that they prepared 1998 and 1999 Federal

income tax returns in October 2000, and mailed the returns to the

Internal Revenue Service (IRS) on October 29 or 30, 2000.



        1
        In his answer, respondent conceded the addition to tax
under sec. 6651(a)(2). Respondent further claims an increase in
the sec. 6651(a)(1) addition, increasing from $873.45 to $970.50.
The basis for the claimed increase is that the concession of the
sec. 6651(a)(2) addition by respondent, eliminated the effect of
the limitation provision of sec. 6651(c)(1). Because of
concessions made by respondent, namely that withholding credits
and estimated tax payments exceeded the tax liability for 1999,
the additions to tax are not in issue in this case.
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Respondent’s records do not reflect the filing of a 1998 or 1999

tax return as asserted by petitioner and his wife.   Petitioner

and his wife filed their tax return for the taxable year 2000 on

April 15, 2004.    At the time of trial (June 2004), petitioner and

Mrs. Hutchinson had not filed Federal income tax returns for the

taxable years 2001, 2002, and 2003.

     On the 1997 tax return, petitioner and Mrs. Hutchinson

claimed an overpayment in the amount of $1,979.13.   Petitioner

and his wife received a refund of $979.13 and sought to apply

$1,000 from the 1997 return to the 1998 taxable year.

     In June 2002, respondent commenced a review of petitioner’s

1999 taxable year.   Respondent examined the records of third

parties and concluded that petitioner received certain items of

income and failed to report said income on a 1999 Federal income

tax return.   By notice of deficiency dated May 5, 2003,

respondent determined that petitioner failed to file a 1999 tax

return and report income.   The notice determined a deficiency in

the amount of $9,218.   After a timely petition was filed with

this Court, petitioner and Mrs. Hutchinson met with an IRS

Appeals Officer.   Petitioner and his wife produced what they

purported to be a copy of the 1999 tax return.   The return is

dated October 29, 2000.   During the same meeting, petitioner and

his wife also provided what they purported to be a copy of the
                                - 4 -

1998 tax return.2   The 1998 tax return reflected an overpayment

of $1,686 and sought to apply the payment to the 1999 tax year.

On the 1999 return petitioner and his wife sought to apply an

overpayment of $7,023 to the 2000 tax year.

     As a result of the meeting and after considering the copy of

the purported return, respondent reduced the 1999 deficiency to

$4,976, which amount petitioner concedes.   Because the parties

agree that petitioner’s withholding credits and estimated tax

payments 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 $361 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).

     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


     2
        The IRS filed this as petitioner’s 1998 return on Feb.
17, 2004.
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deficiency was mailed, the amount of the credit or refund is

limited to the taxes paid during the 2-year period prior to the

date the deficiency notice was mailed.    See secs. 6511(b)(2),3

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.


     3
        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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     The only relevant factual dispute in this case is whether

petitioner filed a Federal income tax return for the taxable year

1999.   Respondent determined that petitioner did not file a 1999

return.    Petitioner argues that he and his wife filed a 1999

return on or about October 29, 2000.

     In general a taxpayer bears the burden of proof.    See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).    The burden

may shift to the Commissioner if the taxpayer introduces credible

evidence and satisfies the requirements under section 7491(a)(2)

to substantiate items, maintain required records, and fully

cooperate with the Commissioner’s reasonable requests.    Sec.

7491(a).

     In the present case, the burden of proof remains with

petitioner, because he has neither taken a position as to whether

the burden of proof should be placed on respondent nor

established that he has complied with the requirements of section

7491(a).

     Petitioner and his wife have a history of nonfiling and

delinquent filing.    A review of IRS computer records reflects

that no return was filed for 1999 and that a substitute for

return was processed on July 1, 2002.    Mrs. Hutchinson testified

that she recalled preparing and mailing the 1998 and 1999 tax

returns.    Mrs. Hutchinson presented a U.S. Postal Service (USPS)

receipt in the amount of $3.20 dated October 30, 2000.    The
                                - 7 -

destination ZIP code on the receipt is   82414 (Cody, Wyoming).

The USPS receipt does not show an addressee.   Respondent asserts,

and it has not been disputed by petitioner, that the destination

ZIP code does not match that of the IRS service center in Utah or

any other IRS office.

     As a general rule, we are not required to accept self-

serving testimony as to when a taxpayer filed his return.

Masters v. Commissioner, 243 F.2d 335, 338 (3d Cir. 1957), affg.

25 T.C. 1093 (1956); Tokarski v. Commissioner, 87 T.C. 74 (1986);

Dugan v. Commissioner, T.C. Memo. 1996-155.    We conclude from

this entire record that petitioner did not file a 1999 Federal

income tax return.

     The notice of deficiency reflects tax payments petitioner

made for 1999 as withholding credits or estimated tax payments.

Such payments are deemed to have been made as of April 15, 2000.

See sec. 6513(b).    Since the withholding and/or estimated taxes

were paid more than 2 years before the notice of deficiency was

mailed, May 5, 2003, petitioner is not entitled to a refund of

any part of an overpayment for 1999.    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.
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To reflect the foregoing,

                                         Decision will be entered

                                 for respondent as to the

                                    deficiency in the amount of

                                    $4,976 and as to the

                                    overpayment, and for

                                    petitioner as to the additions

                                    to tax.
