                  T.C. Summary Opinion 2009-35



                     UNITED STATES TAX COURT



               ALFRED WELLES SUMNER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12150-07S.                Filed March 19, 2009.




     Alfred Welles Sumner, pro se.

     Robert W. Mopsick, for respondent.



     THORNTON, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     1
       All subsequent section references are to the Internal
Revenue Code, as amended.
                                - 2 -

this opinion shall not be treated as precedent for any other

case.

     Petitioner commenced this action in response to a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (the notice of determination) relating to

petitioner’s Federal income taxes for 1999, 2002, and 2003.

Petitioner contends primarily that respondent erred in refusing

to credit his $8,821 overpayment from 1995 against these

outstanding tax liabilities.    Respondent contends that the $8,821

overpayment is not available for credit against these outstanding

tax liabilities because it is barred by the refund period of

limitations under section 6511.

                             Background

     The parties have stipulated some facts, which are so found.

When he petitioned the Court, petitioner resided in New Jersey.

Petitioner is an attorney.

Petitioner’s 1995 Overpayment

     For 1995 petitioner made tax payments totaling $8,821.    This

amount comprised:   (1) A $3,621 overpayment from petitioner’s

1994 tax return, on which he requested that the overpayment be

applied to his 1995 estimated tax;2 (2) a $4,000 estimated tax



     2
       Petitioner’s 1994 Federal income tax return actually
reported a $3,738 overpayment, but respondent applied $118 of
this amount to cover petitioner’s outstanding 1991 tax liability
(discrepancies due to rounding).
                                 - 3 -

payment that petitioner made on April 15, 1996; and (3) $1,200 of

wage withholding.

     Respondent’s records indicate that petitioner never filed a

1995 tax return.    After an investigation, respondent’s revenue

officer closed out the matter, noting that no 1995 return had

been secured but concluding that there would have been little or

no tax due for 1995.    On August 29, 2008, respondent transferred

$7,621 of petitioner’s 1995 overpayment to an excess collections

account.3

Petitioner’s 1999 Return

     On August 21, 2000, petitioner filed his 1999 return,

showing a $1,058 underpayment.    After applying available credits

from 1998 and 2000, respondent determined petitioner’s

outstanding 1999 liability to be $212.

Petitioner’s 2002 Liability

     Petitioner filed no tax return for 2002.    In a statutory

notice of deficiency issued June 7, 2005, respondent determined a

$6,877 deficiency.    On October 25, 2005, respondent assessed this

deficiency plus penalties.    Petitioner subsequently paid $3,600

toward his 2002 liability.




     3
       The record does not reflect respondent’s treatment of the
$1,200 wage withholding that makes up part of petitioner’s $8,821
overpayment for 1995.
                                 - 4 -

Petitioner’s 2003 Tax Return

     On August 19, 2004, petitioner filed his 2003 return,

showing a $3,417 underpayment.

Collection Proceedings

        Respondent sent petitioner a Notice of Federal Tax Lien

Filing and Your Right to a Hearing Under IRC 6320, dated August

16, 2006, for income taxes owed for tax years 1999, 2002, and

2003.    Petitioner timely filed a Form 12153, Request for a

Collection Due Process Hearing.    In an attachment to the Form

12153 petitioner asserted that respondent had failed to “credit

me with all tax payments actually made.    If the Service were to

credit me with those payments, it would find that the amounts

claimed to be owed on the Service’s Notice of Federal Tax Lien

Filing are in fact not owed.”    On the Form 12153 petitioner

requested that the Internal Revenue Service (IRS) “contact me

only in writing”.

     By letter dated March 12, 2007, respondent advised

petitioner that since he had requested that all contacts be in

writing, his conference would be held through correspondence.

The Appeals settlement officer indicated, however, that if

petitioner preferred, he could have a face-to-face meeting.     The

Appeals settlement officer requested petitioner to respond in 14

days to set up a date and location for the hearing.    The Appeals

settlement officer also noted that the Form 12153 failed to
                                - 5 -

specify which payments petitioner believed should have been

credited to him.   The Appeals settlement officer requested

petitioner to describe the years and amounts of these payments

and to provide verification of them, along with other

information.   The Appeals settlement officer also indicated that

before collection alternatives could be considered, petitioner

would need to make estimated tax payments for 2006, file his 2004

and 2005 returns, and submit a completed Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed

Individuals.   Petitioner never responded to the Appeals

settlement officer and never requested a face-to-face hearing.

     In the notice of determination dated April 25, 2007,

respondent’s Appeals Office sustained the filing of the notice of

tax lien.    The notice of determination concluded that the IRS had

met the requirements of all applicable laws, that the Appeals

settlement officer assigned to the case had no prior involvement

with petitioner’s case, and that petitioner had failed to present

any information that would warrant relief.

                             Discussion

     The parties agree that petitioner overpaid his 1995 Federal

income tax and that if the 1995 overpayment were credited against

his 1999, 2002, and 2003 liabilities, which are the subject of

the notice of filing of tax lien, those liabilities would be

satisfied.   Respondent contends, however, that application of the
                                - 6 -

overpayment is barred by section 6511(a).    For the reasons

described below, we agree.

     Under section 6511(a), a claim for credit or refund of

overpayments ordinarily must be filed within 3 years from the

time the return was filed or 2 years from the time the tax was

paid, whichever is later.    Even if the claim is timely filed,

section 6511(b) limits the amount recoverable by reference to two

so-called lookback periods:    (1) If the taxpayer files the claim

within 3 years of filing a return, the credit or refund is

generally limited to the amount paid during the 3 years

immediately before the claim was filed; and (2) if the claim is

not filed within 3 years of filing a return, the credit or refund

is generally limited to the amount paid during the 2 years

immediately before the claim was filed.    See Commissioner v.

Lundy, 516 U.S. 235, 240 (1996).

     In applying these limitations to petitioner’s claim for

credit of his 1995 overpayment, the threshold inquiry is whether

petitioner ever filed his 1995 return.    Respondent’s records

indicate that he did not.

     The only evidence that petitioner has offered as to the

filing of his 1995 return is his testimony that in late spring

1997 he hand-delivered his 1994 and 1995 tax returns to

respondent’s Mountainside, New Jersey, office.    Credible

testimony by respondent’s revenue officer, however, explicating
                               - 7 -

respondent’s records, persuades us that it was actually

petitioner’s 1993 and 1994 tax returns, rather than his 1994 and

1995 returns, that he delivered to respondent’s office in late

spring 1997.   Although we do not question petitioner’s good faith

or motives, petitioner himself acknowledged at trial that the

events in question were a long time ago and that it was possible

he misremembered them.   On a preponderance of the evidence, we

conclude that petitioner never filed his 1995 return.

     Under section 6511(a), then, the relevant period for

petitioner to have filed his claim for refund or credit of his

1995 overpayment was 2 years from the date he paid the tax.

Petitioner is deemed to have made the payments making up the 1995

overpayment on April 15, 1996.4   The record does not suggest that

petitioner filed a claim for credit or refund of his 1995

overpayment within 2 years of April 15, 1996.5   Accordingly,


     4
       As previously indicated, the 1995 overpayment included a
$3,621 overpayment from petitioner’s 1994 tax return which he
requested to be applied to his 1995 estimated tax. Consequently,
this amount was applied as a payment on account for petitioner’s
estimated tax for 1995, see sec. 6402(b); sec. 301.6402-3(b)(5),
Proced. & Admin. Regs., and was deemed to have been paid on Apr.
15, 1996, see sec. 6513(b)(2). Similarly, the other components
of petitioner’s 1995 overpayment, i.e., the $4,000 estimated tax
payment and the $1,200 of wage withholdings, are deemed to have
been paid on Apr. 15, 1996. See sec. 6513(b)(1) and (2).
     5
       Petitioner suggests that even if he never filed a 1995
return, he should be deemed to have made a claim for credit or
refund of his 1994 overpayment by virtue of filing his 1994
return. The problem for petitioner is that he was given credit
for his 1994 overpayment in the manner he requested (except for
                                                    (continued...)
                                 - 8 -

refund or credit of petitioner’s 1995 overpayment is barred by

the limitations period under section 6511.

         Petitioner claims that he was improperly denied a face-to-

face hearing.     Petitioner admits, however, that he never

requested a face-to-face hearing and never responded to

respondent’s March 12, 2007, letter offering him one.     Petitioner

claims that he declined to respond to this offer because he was

convinced it was not going to be a fair proceeding.     In

particular, petitioner complains that before communicating with

him the Appeals settlement officer had received and reviewed his

administrative file “ex parte”.     The transmission of the

administrative file, however, is not considered an ex parte

communication.     Rev. Proc. 2000-43, sec. 3, Q&A-4, 2000-2 C.B.

404, 405.     Petitioner does not allege and the record does not

suggest that the transmission of the administrative record to the

Appeals settlement officer was accompanied by any cover letter or

other communication that would even appear to compromise her

independence.     Cf. Indus. Investors v. Commissioner, T.C. Memo.

2007-93.

     Similarly, petitioner contends that respondent’s March 12,

2007, letter improperly set preconditions on any hearing by


     5
      (...continued)
the $118 applied to his outstanding 1991 liability, see supra
note 2), by applying it to his 1995 estimated tax, thus
contributing to his 1995 overpayment for which, as just
discussed, he failed to make a timely claim for credit or refund.
                                 - 9 -

insisting that petitioner make estimated tax payments for 1996,

file his 2004 and 2005 returns, and submit a completed collection

information statement.   Petitioner’s contention is without merit.

The Appeals settlement officer did not abuse her discretion in

advising petitioner of the eligibility requirements for

considering collection alternatives and in giving him the

opportunity to demonstrate his eligibility.

     In his petition, petitioner requests additional relief in

the form of an accounting from respondent of payments made, a

letter of apology from respondent, or a new hearing.   In the

light of the foregoing discussion, these claims are moot or

without merit.

     To reflect the foregoing,


                                          Decision will be entered

                                     for respondent.
