                       T.C. Memo. 1999-186



                     UNITED STATES TAX COURT



                HUMES HOUSTON HART, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9355-98.                       Filed June 8, 1999.



     Humes Houston Hart, pro se.

     Judith Cohen, for respondent.



                       MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:    This case was heard

pursuant to section 7443A(b)(3)1 and Rules 180, 181, and 182.



     1
           Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for the year in issue.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 2 -


     Respondent determined a deficiency in petitioner's 1994

Federal income tax in the amount of $2,171 and an addition to tax

pursuant to section 6651(a)(1) in the amount of $540.

     Respondent concedes the deficiency and addition to tax in

full; thus, the only issue in dispute is whether petitioner is

entitled to an overpayment in the amount of $11.

     At the time of filing the petition herein, petitioner

resided at Spring City, Pennsylvania.

     During the taxable year 1994, petitioner received taxable

income.   The taxable income was reported by various third-party

payors from "stock/bond" sales, "pension/annuities", dividends,

and interest.   With respect to two of petitioner's bank accounts,

there were withholding credits totaling $11.

     Petitioner did not file a Federal income tax return for the

taxable year 1994.   Respondent mailed a notice of deficiency to

petitioner on May 11, 1998, determining the deficiency and

addition to tax.   The notice of deficiency determined that

petitioner failed to file a return and failed to report various

items of taxable income referred to above.   After petitioner

provided certain information to representatives of the Internal

Revenue Service (IRS), and after a review of this matter by the

IRS Appeals Office, respondent concluded that petitioner was not

required to file a Federal income tax return and was not liable

for a deficiency or an addition to tax.
                               - 3 -


     Petitioner claims that he is entitled to a determination of

an overpayment of his 1994 Federal income tax and that the

overpayment should be refunded to him.   Respondent contends that

petitioner is not entitled to a refund of an overpayment because

of the limitations of sections 6511 and 6512(b).

     Pursuant to section 6512(b)(1), we have jurisdiction to

determine the existence and amount of any overpayment of tax to

be credited or refunded for years that are properly before us.

However, if a taxpayer did not file a return before the notice of

deficiency was mailed, the amount of the credit or refund is

limited to the taxes paid during the 2-year period prior to the

date the deficiency notice was mailed.   See secs. 6511(b)(2),2


     2
        Sec. 6511(a) generally provides that a claim for credit
or refund of an overpayment of tax must be filed by the taxpayer
within 3 years from the time the return was filed or within 2
years from the time the tax was paid, whichever period expires
later. Sec. 6511(a) also expressly provides that, if no return
is filed, the claim must be filed within 2 years from the time
the tax was paid. Sec. 6511(b)(2) provides limitations on the
amount of any credit or refund as follows:

     (2)   Limit on amount of credit or refund.--

          (A) Limit where claim filed within 3-year
     period.--If the claim was filed by the taxpayer during
     the 3-year period prescribed in subsection (a), 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. If the tax was required to be paid by means of
     a stamp, the amount of the credit or refund shall not
     exceed the portion of the tax paid within the 3 years
                                                   (continued...)
                                - 4 -


6512(b)(3)(B); Commissioner v. Lundy, 516 U.S. 235, 243-244

(1996); Stevens v. Commissioner, T.C. Memo. 1996-250.

     The only tax payments petitioner made for 1994 were

withholding credits.    Such payments are deemed to have been paid

as of April 15, 1995.   See sec. 6513(b)(1).3   Since the

withholding taxes were paid more than 2 years before the notice

of deficiency was mailed, petitioner is not entitled to a refund

of any part of an overpayment for 1994.    We therefore hold that

the statutorily imposed time limitations of sections 6511 and

6512 bar us from determining that petitioner is entitled to a

refund with respect to his 1994 tax.    See Commissioner v. Lundy,



     2
      (...continued)
     immediately preceding the filing of the claim.

          (B) Limit where    claim not filed within 3-year
     period.--If the claim   was not filed within such 3-year
     period, the amount of   the credit or refund shall not
     exceed the portion of   the tax paid during the 2 years
     immediately preceding   the filing of the claim.

          (C) Limit if no claim filed.--If no claim was
     filed, the credit or refund shall not exceed the amount
     which would be allowable under subparagraph (A) or (B),
     as the case may be, if claim was filed on the date the
     credit or refund is allowed.
     3
         Sec. 6513(b)(1) provides in pertinent part:

          (1) Any tax actually deducted and withheld at the
     source during any calendar year * * * shall * * * be
     deemed to have been paid by him on the 15th day of the
     fourth month following the close of his taxable year
     with respect to which such tax is allowable as a credit
     under section 31.
                                 - 5 -


supra; Badger v. Commissioner, T.C. Memo. 1996-314; Stevens v.

Commissioner, supra.

     To reflect the foregoing,

                                         Decision will be entered

                                    for petitioner as to the

                                    deficiency and addition to

                                    tax and for respondent as to

                                    the overpayment.
