                  T.C. Summary Opinion 2005-115



                     UNITED STATES TAX COURT


             BELINDA LANDREA DENNARD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 1253-04S.              Filed August 8, 2005.


     Belinda Landrea Dennard, pro se.

     Miriam C. Dillard, for respondent.


     DEAN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code as in

effect at the time the petition was filed.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code of 1986, as amended, and all Rule references are to

the Tax Court Rules of Practice and Procedure.    The decision to

be entered is not reviewable by any other court, and this opinion

should not be cited as authority.
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     The case arises from petitioner’s election to seek relief

from joint and several liability under section 6015 for Federal

income tax for 1997.    Respondent issued to petitioner a notice of

determination that she is not entitled to relief under section

6015(b), (c), or (f).

     Respondent now concedes that petitioner is entitled to

relief under section 6015(b) and to a refund, under section

6015(g), of an overpayment of $437.90 for 2001 that was offset

against a deficiency assessment for 1997.    The issue remaining

for decision is whether petitioner is entitled to a refund of an

overpayment of tax for 2000 that was offset against the

deficiency assessment for 1997.

                              Background

     The exhibits received into evidence are incorporated herein

by reference.   At the time the petition in this case was filed,

petitioner resided in Orlando, Florida.

     Petitioner and her then husband timely filed a joint Federal

income tax return for 1997.    In 2000, respondent issued a

statutory notice of deficiency to petitioners, determining

additional tax due for 1997.    No petition was filed with the

Court for a redetermination of the proposed deficiency, and the

tax was subsequently assessed.

     Certified transcripts introduced by respondent show that on

February 19, 2001, respondent captured petitioner’s overpayment
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of tax of $5,050 for 2000 and offset it against the outstanding

joint tax liability for 1997.   In the following year, respondent

captured petitioner’s overpayment of tax for 2001 of $437.90, and

set it off against the liability for 1997.

     Petitioner signed on May 19, 2003, and the Internal Revenue

Service filed on May 21, 2003, a Form 8857, Request for Innocent

Spouse Relief (And Separation of Liability and Equitable Relief),

referencing an understatement of tax for 1997.   Respondent sent

to petitioner a Notice of Determination denying her request,

finding her ineligible under section 6015(b), (c), and (f).    At

trial, respondent conceded that petitioner is entitled to relief

for 1997 under section 6015(b).   Respondent also conceded that

petitioner is entitled to a refund of the setoff of the

overpayment for 2001.   Respondent argued, however, that

petitioner is not entitled to a refund of the setoff of her

overpayment for 2000.

                            Discussion

     Spouses filing a joint Federal income tax return are jointly

and severally liable for all taxes due.   Sec. 6013(d)(3);

Cheshire v. Commissioner, 115 T.C. 183, 188 (2000), affd. 282

F.3d 326 (5th Cir. 2002).   Under certain circumstances, however,

section 6015 provides relief from this general rule.   Fernandez
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v. Commissioner, 114 T.C. 324, 326-328 (2000).    Here, respondent

determined that petitioner is entitled to relief under section

6015(b).   Since petitioner is entitled to relief under section

6015, petitioner “wants all her money back”.

     Section 6015(g)(1) provides that in general, a credit or

refund shall be allowed to the extent it is attributable to the

operation of section 6015, except to the extent that it may be

affected by other specified sections, including sections 6511 and

6512(b).   Respondent asserts that the refund for 1997, paid by

offset of the overpayment for 2000, is barred under section 6511

since the claim for refund was made more than 3 years after the

return was filed and more than 2 years from the time the tax was

paid.   The Court agrees with respondent.

     The amount of credit or refund is subject to two "look-back"

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

claim for credit or refund of an overpayment of any tax shall be

filed by the taxpayer:   (1) Within 3 years from the time the

return was filed, or (2) within 2 years from the time the tax was

paid, whichever of those periods expires later.    Sec. 6511(a).

Under the 3-year look-back period, if the claim was filed within

3 years of the filing of the return, then the taxpayer is

entitled to a refund of taxes paid within 3 years immediately

preceding the filing of the claim, plus the period of any

extension of time for filing the return.    Sec. 6511(b)(2)(A).
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     If the claim was not filed within that 3-year period, the

taxpayer is entitled to a refund of only those taxes paid during

the 2 years immediately preceding the filing of the refund claim.

Sec. 6511(b)(2)(B).    If no claim is filed, the credit or refund

cannot exceed the amount that would be allowable under section

6511(b)(2)(A) or (B) if a claim were filed on the date the credit

or refund is allowed.   Sec. 6511(b)(2)(C).   Moreover, in the case

of any overpayment by a taxpayer, the Commissioner generally may,

within the applicable period of limitations, credit the amount of

such overpayment against any tax liability of that taxpayer.

Sec. 6402(a).

     Petitioner’s 1997 joint Federal income tax return was filed

on April 15, 1998.1   A refund claim was not filed within 3 years

of the date of filing of the return.    A payment on the 1997 tax

liability was made on February 19, 2001, when the overpayment for

2000 was offset against the 1997 tax liability.   Petitioner’s

request for relief on Form 8857 was submitted on May 19, 2003.

The claim for refund was not filed within 2 years of the February

19, 2001, payment.    See Driggers v. Commissioner, T.C. Memo.

2004-76.




     1
      For purposes of sec. 6511, a return filed before the last
day for filing shall be considered as filed on the last day.
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     Petitioner is not entitled to a refund of the payment with

respect to the 1997 tax year made on February 19, 2001; it is

barred under section 6511.

     Reviewed and adopted as the report of the Small Tax Case

Division.


                                           Decision will be entered

                                      under Rule 155.
