                        T.C. Memo. 1999-160



                      UNITED STATES TAX COURT



                 J. LESLIE JAMES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13599-97.                       Filed May 12, 1999.



     J. Leslie James, pro se.

     John Weeda, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Respondent determined a $71,652 deficiency

in petitioner's Federal income tax for 1993.    Respondent also

determined that petitioner is liable for additions to tax for

1993 of $12,425 for failure to file a timely return under section

6651(a), and $1,980 for failure to pay estimated tax under

section 6654(a).
                               - 2 -

     Respondent now concedes that petitioner overpaid his 1993

Federal income tax by $6,267.65.    The sole issue for decision is

whether we have jurisdiction under section 6512(b) to award a

refund of his overpayment for 1993.    We hold that we do not.

     Unless otherwise indicated, section references are to the

Internal Revenue Code as amended.   Rule references are to the Tax

Court Rules of Practice and Procedure.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

     Petitioner lived in Littleton, Colorado, when he filed the

petition.

A.   Petitioner's Federal Income Tax Returns for 1991 and 1992

     Petitioner had extensions to file his 1991 return on August

15, 1992, and his 1992 return on October 15, 1993.    He filed his

1991 return on September 28, 1992, and his 1992 return on August

23, 1994.

B.   Preparation of Petitioner's 1993 Return

     Petitioner's preparer, Richard Ball (Ball) of Ball

Accounting & Data Centers, Inc., prepared a joint Federal income

tax return for 1993 for petitioner and his wife, Michelle James.

Ball had prepared tax returns for petitioner for more than 15

years before 1993.   During that time, Ball prepared and

petitioner filed many tax returns, such as gasoline excise tax

returns, for petitioner and for his two corporations.
                               - 3 -

     Ball had health problems that made it difficult for him to

work from March to August 1994.    Ball's poor health caused a

backlog of work at his office in 1994.

     On April 15, 1994, Ball mailed an application to respondent

for automatic extension to file petitioner's 1993 income tax

return (Form 4868).   On August 12, 1994, Ball mailed an

application to respondent to extend the time to file petitioner's

1993 return to October 15, 1994.

     Ball finished preparing petitioner's 1993 return on August

23, 1995.   Ball and members of his firm used routing control

sheets to track each of petitioner's returns from the time

petitioner first came to the office until he received his return.

Ball's office manager, Lyn Gore (Gore), signed the control sheet

and packaged petitioner's 1993 return with an invoice and

instructions on August 23, 1995.    Gore prepared an envelope with

postage so that petitioner and his wife could readily sign the

return and mail it.   Ball signed petitioner’s 1993 return as

preparer on August 31, 1995.   Petitioner picked up his 1993

return at Ball's office on August 31, 1995.

     Petitioner and his wife paid income tax for 1993 of $31,000

by withholding, $2,881 by estimated tax payments and an amount

applied from their 1992 return, and $4,727 by check attached to

their Form 4868 extension request.     They indicated on their 1993

return that they had a $7,421 overpayment, which they directed
                                 - 4 -

respondent to apply to their 1994 estimated tax.   Thus, they did

not expect to receive a refund.

C.   The Notice of Deficiency and Correspondence About
     Petitioner's 1993 Return

     Petitioner cannot specifically remember mailing his 1993

return in 1995, and he has no record that he mailed it in 1995.

Respondent mailed a notice of deficiency for 1993 to petitioner

on March 24, 1997.   On April 14, 1997, Ball wrote a note to

petitioner in which Ball said:

          I'm quite sure the '93 return was filed in August
     of '95, but the IRS does not recognize it.
          To protect the refunds from the IRS and the state,
     we need to resubmit the returns by 4-15-97.
          Please sign (again) the Federal return and State
     return on the 2nd page where X's are located. You can
     date it 8-31-95 as I did or 4-14-97, it doesn't really
     make any difference.
          Be sure to send via certified mail. Have the
     postman stamp (date stamp) the white copies of the cert
     mail receipts so we can prove timely mailing if we need
     to. Also be sure to keep the receipts and return them
     to me so I can put them in the file.
          Sorry for any inconvenience.

D.   Petitioner's 1993 Return Filed April 15, 1997

     On April 15, 1997, petitioner and his wife signed and filed

a joint Federal income tax return for 1993 with a handwritten

note at the top stating "Please Do Not Duplicate".   Ball's copy

of this return is stamped April 15, 1997.   "Reference,

Resubmitted 1993 1040" is handwritten on Ball’s copy of this

return.
                               - 5 -

     Respondent has no record of receiving a 1993 return from

petitioner before April 15, 1997.   Petitioner and respondent

stipulate that petitioner and his wife overpaid their 1993 income

tax by $6,267.65.

E.   Petitioner's Federal Income Tax Returns for 1994 to 1996

     Petitioner requested and received extensions of time to

October 15, 1995, 1996, and 1997, to file his Federal income tax

returns for 1994, 1995, and 1996, respectively.     He had not yet

filed those returns as of the time of trial in 1998.

                              OPINION

A.   Background and Contentions of the Parties

     The Tax Court has jurisdiction to award to a taxpayer a

refund of overpaid taxes which the taxpayer paid during either

the 2 years before respondent issued the notice of deficiency or

3 years before the taxpayer filed his or her return.     Secs.

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

U.S. 235, 242 (1996).   The 2-year period applies if the taxpayer

filed his or her income tax return after respondent issued a

notice of deficiency for that year.     Secs. 6511(b)(2)(B),

6512(b)(3); Commissioner v. Lundy, supra at 243.     Thus, if

petitioner filed his 1993 Federal income tax return before

respondent sent the notice of deficiency on March 24, 1997, then

we would have jurisdiction to award a refund of $6,267.65 for

1993 if petitioner paid at least that much tax for 1993 during
                                  - 6 -

the 3 years before the taxpayer filed his return.    However, if

petitioner filed his 1993 Federal income tax return after March

24, 1997, then we would have jurisdiction only to award a refund

of tax that he paid for 1993 during the 2-year period ending on

that date.

     Petitioner contends that the 3-year period applies because

he filed his 1993 return before March 24, 1997.   Respondent

contends that petitioner first filed his 1993 return on April 15,

1997, and thus the 2-year period applies.   Petitioner bears the

burden of proof.   Rule 142(a).

B.   Whether Petitioner Mailed His 1993 Income Tax Return Before
     March 24, 1997

     Petitioner testified that he could not specifically recall

mailing his 1993 Federal income tax return in 1995.    Petitioner

contends in his posttrial brief that he picked up the return at

Ball's office on August 31, 1995, took it directly home for his

wife to sign, then drove a short distance to the post office

where he mailed the return.   It is clear that petitioner picked

up the return at Ball's office on August 31, 1995.    However, he

did not offer any evidence at trial that he took it home, that

his wife signed it, or that he mailed it at the post office.    We

may not consider factual allegations in briefs that are

unsupported by the record.

     Petitioner does not contend that he used certified mail to

mail his 1993 return in 1995, and he has no record that he mailed
                               - 7 -

his 1993 return in 1995.   Respondent has no record of receiving a

1993 return for petitioner before April 15, 1997.1

     Petitioner's testimony about mailing his 1993 return in 1995

was at best vague, unlike the testimony of the rural postmistress

in Estate of Wood v. Commissioner, 909 F.2d 1155 (8th Cir. 1990),

affg. 92 T.C. 793 (1989), who saw the taxpayer mail the tax

return at issue, and the testimony of the taxpayers' personal

secretary and employees in Carroll v. Commissioner, T.C. Memo.

1994-229, affd. 71 F.3d 1228 (6th Cir. 1995), who specifically

remembered how the taxpayers handled the tax return at issue in

that case.

     Petitioner contends that Ball's routing control sheet

establishes that he mailed his 1993 return on August 31, 1995.

We disagree.   The control sheet shows that petitioner picked up

his completed return at Ball's office on August 31, 1995, with an

envelope bearing the proper address and postage; it does not show

when the return was mailed.

     Petitioner contends that the handwritten notes stating

"Please Do Not Duplicate" on his copy and "Reference, Resubmitted

1993 1040" on Ball's copy of petitioner's return mailed on April



     1
       This contrasts with Sullivan v. Commissioner, 985 F.2d
704, 706 (2d Cir. 1993), affg. in part and revg. in part T.C.
Memo. 1991-492, where it was unknown whether the Commissioner had
a record that the taxpayer had filed a return because the
Commissioner had not checked the service center with which the
taxpayer was required to file.
                                - 8 -

15, 1997, establish that petitioner mailed his 1993 return on

August 31, 1995.   Petitioner contends that the note on his return

shows that he believed that the 1993 return that he mailed on

April 15, 1997, was a duplicate of a return he filed earlier.     We

disagree.    The note on his return simply requests that the return

not be duplicated.   The note on Ball's copy suggests that the

author of the note believed that Ball's copy had been filed

before April 15, 1997.   However, the record does not show who

wrote the note or what that person knew when he or she wrote it.

The notes do not establish that petitioner mailed his 1993 return

before March 24, 1997.

     Petitioner contends that he proved with evidence of habit

that he mailed his 1993 return before March 24, 1997.   Rule 406

of the Federal Rules of Evidence provides that evidence of habit

is relevant to prove that the conduct of a person on a particular

occasion conforms to that person's habit.   Petitioner testified

that his habit was to pick up his income tax return from Ball's

office and take it home for his wife to sign.   Petitioner

testified that when he picked up a return "it's in the mail the

same day."   He did not say who mailed his income tax returns or

where or how they were mailed.2




     2
       Petitioner testified that he mailed returns that did not
require his wife's signature at a post office in Golden,
Colorado, near his office.
                                - 9 -

     The record does not show that petitioner had good tax return

filing habits.    Petitioner habitually filed his Federal income

tax returns late.    He had extensions of time to file his returns

for 1991, 1992, 1993, 1994, 1995, and 1996, but did not file them

until after the extended time had passed.    As of the date of

trial, petitioner had not filed his returns for 1994, 1995, and

1996.

     Petitioner contends that Ball had valid reasons for not

preparing petitioner's returns for 1994, 1995, and 1996.    We

disagree.   Ball's explanations were vague and unsatisfactory.

Ball attributed the delay to his health problems.    However, he

testified that others in his office could prepare petitioner's

returns.    Ball testified that petitioner's claim for a refund was

a problem on petitioner's 1994 return.    However, Ball testified

that he eventually decided to prepare a return for petitioner for

1994 without applying for the refund.    Ball testified that he

wanted petitioner to claim a loss on petitioner's 1995 return

under section 1244 related to a liquor store.    However,

petitioner kept no records for the store.    Ball said that he had

all of the data required for petitioner's 1996 return before

April 15, 1997.    Ball's testimony does not convince us that

petitioner had valid reasons for not filing his 1994, 1995, and

1996 returns.
                                - 10 -

     Petitioner relies on Hiner v. Commissioner, T.C. Memo. 1993-

608, where we said:

          Proof of mailing requires some proof that the
     return was placed in an envelope that was properly
     addressed, stamped, and placed in the mail. * * *

Petitioner contends that he satisfied the legal standard stated

in Hiner because Ball prepared his 1993 tax return and gave him a

properly addressed envelope with prepaid postage.

     Petitioner erroneously relies on Hiner.     We held in Hiner

that the taxpayer did not prove that he mailed the return at

issue.   The taxpayer in Hiner testified about his tax return

filing practices and that he believed he timely filed the return

at issue.   Here, petitioner's testimony is unpersuasive like that

of the taxpayer in Hiner.

     Petitioner contends that he conservatively estimated and

prepaid taxes due, and that this shows that he filed his 1993

return before March 24, 1997.    We disagree.   Paying estimated tax

is not evidence that petitioner filed a return for 1993.

     Petitioner contends that respondent has the burden of

proving that he did not file a 1993 return before April 15, 1997.

We disagree.   Petitioner bears the burden of proving that he

filed his 1993 return.   Rule 142(a).
                                - 11 -

     We conclude that petitioner did not file his 1993 return

before March 24, 1997.3

C.   Whether We May Award Petitioner a Refund for 1993

     Petitioner filed his Federal income tax return for 1993

after respondent issued a notice of deficiency for that year.

     Petitioner last paid tax for 1993 on April 15, 1994, when he

paid $4,727 with his request for an automatic extension of time

to file.    Withheld income taxes are deemed paid on April 15 of

the year following the taxable year.     Sec. 6513(b)(1).   Estimated

income taxes are deemed paid on the last day prescribed to file

the return without regard to extensions.     Sec. 6513(b)(2).

Petitioner paid or is deemed to have paid income tax for 1993 on

April 15, 1994, more than 2 years before March 27, 1997, when

respondent issued the notice of deficiency for 1993.     Thus, we

lack jurisdiction to award petitioner a refund of his overpayment

for 1993.    Commissioner v. Lundy, 516 U.S. at 243.

     Petitioner indicates that IRS Publication 556, Examination

of Returns, Appeal Rights, and Claims for Refund (dated Rev. May

1997), did not mention the 2-year period referred to in

Commissioner v. Lundy, supra.    However, that does not affect our

conclusion because IRS publications are not legal authority.        See

Zimmerman v. Commissioner, 71 T.C. 367, 371 (1978), affd. without


     3
       In light of our conclusion, we need not decide
respondent's contention that sec. 7502 is the exclusive means to
prove timely mailing.
                             - 12 -

published opinion 614 F.2d 1294 (2d Cir. 1979); Green v.

Commissioner, 59 T.C. 456, 458 (1972).

     We conclude that we lack jurisdiction to award petitioner a

refund of his overpayment for 1993.

     To reflect concessions and the foregoing,


                                           Decision will be entered

                                      under Rule 155.
