                  T.C. Summary Opinion 2003-171



                     UNITED STATES TAX COURT



                 GARY R. GREULICH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15075-02S.            Filed December 30, 2003.


     Santo J. Bonanno, for petitioner.

     Wendy D. Gardner, 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 petitioner a Notice Of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330

for unpaid Federal income taxes and related liabilities in the

following amounts:

                    Year                    Liability2

                    1991                    $4,599.06
                    1993                     5,885.73


     Petitioner seeks to have a tax lien removed.        The issue is

whether petitioner’s claim for credit or refund is limited by the

“look-back” period prescribed in section 6511(b)(2)(A).

Petitioner resided in Oakland, New Jersey, at the time the

petition was filed.

                              Background

     The facts are not in dispute, and the issue is primarily one

of law.3    On April 15, 1993, petitioner filed Form 4868,

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

Individual Income Tax Return, and remitted a payment of $7,000 by

check.     On the memo line of the check, petitioner noted his

Social Security number and “1040 92".      Respondent granted an

extension to file until August 15, 1993, and subsequently further

extended the filing date to October 15, 1993.      Petitioner did not


     2
         Amounts computed through July 22, 2002.
     3
        Sec. 7491, concerning burden of proof, has no bearing on
this case.
                                - 3 -

timely file his 1992 return, and respondent credited the $7,000

payment to an “excess collections” account.

     On May 13, 1998, petitioner filed his 1991, 1992, and 1993

returns.   Respondent applied $2,658 of the $7,000 payment to

petitioner’s 1992 tax liability, and the remaining amount

remained in the “excess collections” account.   On November 19,

1998, petitioner remitted an additional payment of $897.17.

Respondent applied that payment to petitioner’s 1991 tax

liability because his 1992 liability was paid in full.

     On November 30, 1998, respondent issued petitioner, inter

alia, two letters entitled “Statement of Account”, requesting

additional payments for 1991 and 1993.   In a letter to respondent

dated December 13, 1998, petitioner requested that the $7,897.17

that had been remitted to respondent be credited to his 1991 and

1993 liabilities.   Respondent refused to comply with this

direction, and, with the exception of applying $3,555.17 of the

payments to the 1991 and 1992 liabilities discussed above, none

of the balance was credited to petitioner’s outstanding tax

liabilities.

     On October 12, 2000, respondent issued 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 August 22, 2002, the Appeals officer to whom

the matter was assigned issued petitioner the Notice of
                                 - 4 -

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 concluding that the liabilities set forth above were

correct and unpaid and that the filing of the tax lien was

appropriate.    The Appeals officer also determined that a

consideration of any offer in compromise was inappropriate

because petitioner had not filed tax returns for subsequent

years.    Petitioner timely filed with this Court a petition for

review of the Appeals officer’s determinations.    Petitioner

raised only the question of whether the liabilities had been

paid.

                             Discussion

       Respondent did not issue petitioner notices of deficiency

for the taxable years at issue, and petitioner has not had an

opportunity to dispute whether such tax liabilities remain

unpaid.    Petitioner may challenge the existence of the underlying

tax liabilities in this Court.    See secs. 6320(c), 6330(c)(2)(B),

(d).    Where the validity of the underlying tax liabilities is

properly placed at issue, this Court will review the matter on a

de novo basis.    Sego v. Commissioner, 114 T.C. 604, 610 (2000);

Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

       Section 6511 contains two separate provisions to determine

the period of limitations for refund or credit claims.    First,

section 6511(a) establishes a filing deadline.    Second, section

6511(b)(2)(A) establishes a “look-back” period, which provides a
                               - 5 -

ceiling limitation on the amount of an allowable refund or

credit.   Commissioner v. Lundy, 516 U.S. 235, 239-240 (1996).

     As applicable here, petitioner must file a claim for credit

or refund “of an overpayment * * * within 3 years from the time

the return was filed”.   Sec. 6511(a).   Respondent concedes that

petitioner timely filed a claim for credit on December 13, 1998.

If, however, the claim was filed “during the 3-year period * * *

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.”    Sec. 6511(b)(2)(A).

     Respondent granted petitioner a 6-month extension to file

his 1992 return.   Petitioner filed the claim for credit on

December 13, 1998.   As a result, petitioner’s available credit

for the tax paid is limited to the portion of the tax paid within

3 years and 6 months before he filed the claim for credit, or

between June 13, 1995 and December 13, 1998.    Petitioner’s

payment of $7,000 was deemed paid on April 15, 1993, see sec.

6513,4 long before the “look-back” period.   See also Tedokon v.

     4
         By marking “1040 92" on the memo line of his check
petitioner intended the $7,000 remittance to constitute a tax
payment, and not a deposit in the nature of a cash bond. See
Risman v. Commissioner, 100 T.C. 191 (1993); Maxon v.
Commissioner, T.C. Memo. 1994-494; Gabelman v. Commissioner, T.C.
Memo. 1993-592, affd. 86 F.3d 609 (6th Cir. 1996). Respondent
treats remittances sent with a Form 4868 extension request as
remittances of estimated tax payments. See Action on Decision
1997-006 (May 5, 1997), 1997-1 C.B. 1.
                                 - 6 -

Commissioner, T.C. Memo. 2002-308; Lee v. Commissioner, T.C.

Memo. 2002-233.    Petitioner’s claim to the balance in the “excess

collections” account was, therefore, time barred.

     The result may appear somewhat harsh, but it must be pointed

out that the result flows from petitioner’s actions in not timely

filing his tax returns.    All of this could have been avoided if

petitioner had followed the statutory provisions for filing

returns.    Those provisions are not obscure.      We sustain

respondent’s determination.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
