                        T.C. Memo. 2010-63



                      UNITED STATES TAX COURT



                  MICHELE PETTY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 27921-08.                Filed March 30, 2010.



     Michele Petty, pro se.

     Brooke S. Laurie, for respondent.



                        MEMORANDUM OPINION


     COHEN, Judge:   Respondent determined a deficiency of

$145,017 in petitioner’s 2004 Federal income tax as well as

additions to tax under sections 6651(a)(1) and (2) and 6654(a).

After concessions, the issue for decision is whether petitioner

is entitled to an overpayment credit or refund.
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     All section references are to the Internal Revenue Code for

the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

                            Background

     This case was submitted fully stipulated under Rule 122, and

the stipulated facts are incorporated as our findings by this

reference.   Petitioner resided in Texas at the time the petition

was filed.

     On April 16 and July 19, 2004, petitioner made estimated tax

payments of $5,000 and $15,000, respectively, towards her 2004

Federal income tax liability.   On January 17, 2005, petitioner

made an estimated tax payment of $25,000 towards her 2004 Federal

income tax liability.   Petitioner is also entitled to a $14

withholding credit for 2004.

     On April 15, 2005, petitioner timely filed an application

for an extension of time to file a return for 2004, extending the

due date for her 2004 Federal income tax return to August 15,

2005.   Petitioner failed to file timely her Form 1040, U.S.

Individual Income Tax Return, for 2004, and did not file her Form

1040 for 2004 before the Internal Revenue Service (IRS) sent her

a notice of deficiency on August 11, 2008.   The IRS first

received petitioner’s Form 1040 for 2004 on November 7, 2008.     On

November 17, 2008, petitioner filed a petition with this Court.

Respondent now concedes that petitioner’s proper Federal income
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tax liability for 2004 was $21,444 and that petitioner’s payments

and withholding credits towards her 2004 tax liability total

$45,014.    Respondent also concedes that no additions to tax are

due.

                               Discussion

       Petitioner seeks a refund for the $23,570 she overpaid for

her 2004 Federal income tax.     Respondent argues that petitioner

is not entitled to a refund because none of the overpayment was

paid within the 3-year period required under sections 6512(b)(3)

and 6511(b)(2).

       Under section 6512(b)(1), this Court has jurisdiction to

determine the existence and amount of any overpayment of tax to

be refunded for a year before us, subject only to the look-back

period in sections 6512(b)(3) and 6511.     See Commissioner v.

Lundy, 516 U.S. 235, 240 (1996) (“[T]he restrictions governing

the Tax Court’s authority to award a refund of overpaid taxes

incorporate only the look-back period and not the filing deadline

from section 6511.”); Krape v. Commissioner, T.C. Memo. 2007-125.

Section 6512(b)(3) provides:

       SEC. 6512(b). Overpayment Determined by Tax Court.--


            *      *       *        *       *     *       *

            (3) Limit on Amount of Credit or Refund.--No such
       credit or refund shall be allowed or made of any
       portion of the tax unless the Tax Court determines as
       part of its decision that such portion was paid–
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               (A) after the mailing of the notice of
          deficiency,

               (B) within the period which would be
          applicable under section 6511(b)(2), (c), or (d),
          if on the date of the mailing of the notice of
          deficiency a claim had been filed (whether or not
          filed) stating the grounds upon which the Tax
          Court finds that there is an overpayment, or

               (C) within the period which would be
          applicable under section 6511(b)(2), (c), or (d),
          in respect of any claim for refund filed within
          the applicable period specified in section 6511
          and before the date of the mailing of the notice
          of deficiency–

          *      *       *         *         *      *       *

     In a case described in subparagraph (B) where the date
     of the mailing of the notice of deficiency is during
     the third year after the due date (with extensions) for
     filing the return of tax and no return was filed before
     such date, the applicable period under subsections (a)
     and (b)(2) of section 6511 shall be 3 years.

     Section 6512(b)(3)(A) is not relevant because petitioner did

not make any payments for her 2004 Federal income tax after the

notice of deficiency was mailed.       Section 6512(b)(3)(C) is not

relevant because petitioner did not file a claim for a refund

before the date of the mailing of the notice of deficiency.       Thus

to determine the amount to be refunded, we must decide the amount

that qualifies under section 6512(b)(3)(B).

     To calculate the period during which an overpayment may be

refunded under sections 6512(b)(3)(B) and 6511(b)(2), we utilize

the date the notice of deficiency was mailed, August 11, 2008, as

the date petitioner filed her claim for a refund.       See Zarky v.
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Commissioner, 123 T.C. 132, 134-135 (2004).       The due date for

filing petitioner’s tax return was August 15, 2005.      Because the

notice of deficiency was mailed in the third year after the due

date (with extensions) for filing the tax return, the applicable

period during which an overpayment may be refunded under sections

6512(b)(3)(B) and 6511(b)(2) is 3 years from the date of the

claim for a refund.   See sec. 6512(b)(3) (flush language); Zarky

v. Commissioner, supra.     Thus petitioner is entitled to a refund

of any payments made within 3 years of August 11, 2008.

Petitioner bears the burden of proving that her overpayments are

refundable.   See Rule 142; Krape v. Commissioner, supra; Jackson

v. Commissioner, T.C. Memo. 2002-44.

     Petitioner made a number of estimated tax payments towards

her 2004 Federal income tax liability before April 2005.      Under

section 6513(b)(2), “Any amount paid as estimated income tax for

any taxable year shall be deemed to have been paid on the last

day prescribed for filing the return under section 6012 for such

taxable year (determined without regard to any extension of time

for filing such return).”    The last day prescribed for filing a

Federal income tax return under section 6012 for 2004 was Friday,

April 15, 2005.   See sec. 6072(a).      Thus the estimated payments

were deemed paid on April 15, 2005, which is not within 3 years

of August 11, 2008.   The $14 withholding credit was also deemed

paid on April 15, 2005.   See sec. 6513; Baral v. United States,
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528 U.S. 431, 435-436 (2000).   As a matter of law, petitioner is

not entitled to credit for an amount paid or deemed paid more

than 3 years before a claim for a credit of that amount was

filed.   It is unfortunate that petitioner loses the benefit of

payments she made, but that is one of the consequences of failing

to file timely a Federal income tax return.

     We have considered petitioner’s other arguments, and they

are irrelevant to our decision.

     For the reasons explained above,


                                        Decision will be entered

                                  that there is no deficiency or

                                  addition to tax due from

                                  petitioner, and no overpayment

                                  due to petitioner.
