                       T.C. Memo. 1999-337



                     UNITED STATES TAX COURT



                 MILTON R. BEALL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14733-97.               Filed October 8, 1999.



     Milton R. Beall, pro se.

     Ann M. Murphy, for respondent.



                       MEMORANDUM OPINION


     COHEN, Chief Judge:    In a statutory notice sent April 7,

1997, respondent determined a deficiency of $11,329 in

petitioner's Federal income taxes for 1993.    Respondent also

determined additions to tax under sections 6651(a) and 6654(a),

but those additions to tax have now been conceded by respondent.

All section references are to the Internal Revenue Code in effect
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for the year in issue.   All of the facts have been stipulated,

and the case has been submitted pursuant to Rule 122, Tax Court

Rules of Practice and Procedure.

     Petitioner resided in Oregon at the time the petition was

filed.

     Petitioner did not file a timely Federal income tax return

for 1993.   On or about April 15, 1994, he made a payment of

$1,300 with a timely request for an extension of time, from

April 15, 1994, until August 15, 1994, to file his return for

1993.

     On or about October 4, 1995, petitioner and his wife filed a

Form 1040, joint Federal income tax return, for 1992.   On that

return for 1992, they reported an overpayment of $4,969.   The

overpayment included Federal income tax withheld during 1992 and

1992 estimated tax payments.   Petitioner and his wife requested

that the overpayment be applied to their 1993 estimated tax.

     On August 13, 1997, petitioner and his wife submitted a

joint return for 1993 showing a total tax liability of $4,345.

After the return was examined, petitioner and respondent agreed

that the total joint tax liability of petitioner and his wife for

1993 is $4,172.   After applying the payment of $1,300 that was

made on April 15, 1994, and the overpayment of $4,969 from

petitioner's 1992 return, the parties agreed that petitioner's

1993 tax liability was overpaid by $2,097.
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     Respondent contends that refund of the sum of $2,097 is

barred by the statute of limitations effect of section 6512(b).

Petitioner argues that he is not seeking a refund but only credit

against his tax liability for 1994 and 1995.    The Court does not

have jurisdiction over either 1994 or 1995.    In any event, the

applicable authorities equate refund and credit and indicate that

either is barred in these circumstances.

     Petitioner's overpayment resulted from a combination of

income taxes withheld during 1992 and estimated tax payments made

for 1992 and 1993.   Section 6513(b)(1) provides that tax deducted

and withheld is deemed paid on the 15th day of the fourth month

following the close of the taxable year for which the tax is

allowable as a credit.   Section 6513(b)(2) provides that any

amounts paid as estimated tax are deemed paid on the last day

prescribed for filing the return for the year for which the

estimate is paid.    Thus, petitioner's entire overpayment carried

forward from 1992 to 1993 is deemed paid no later than April 15,

1994.

     Petitioner did not file his 1993 return, or any claim for

refund, until August 1997, 4 months after the notice of

deficiency was sent.   If a petition is filed in the Tax Court and

an overpayment is determined, no credit or refund may be allowed

unless the Court determines that the portion constituting the

overpayment was paid after the mailing of the notice of
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deficiency, or, if no claim was previously made, within 2 years

prior to the notice of deficiency.     See secs. 6511(a) and

(b)(2)(B), 6512(b)(3); Commissioner v. Lundy, 516 U.S. 235

(1996).   (Section 6513(b)(3) was amended for years ending after

August 5, 1997, by the Taxpayer Relief Act of 1997, Pub. L. 105-

34, sec. 1282(a), 111 Stat. 788, 1037-1038.)     Simply stated,

because petitioner's payments of his 1993 taxes are all deemed to

have been made no later than April 15, 1994, more than 2 years

prior to the issuance of the statutory notice on April 7, 1997,

refund or credit of the overpayment is barred.

                                       Decision will be entered in

                               accordance with the stipulation

                               of the parties.
