                  T.C. Summary Opinion 2002-101



                     UNITED STATES TAX COURT


               DANIEL JOSEPH WHITE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 8815-00S.             Filed August 5, 2002.


     Daniel Joseph White, pro se.

     William J. Gregg, for respondent.


     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time the petition was filed.    The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.
                               - 2 -

     Respondent determined a deficiency in petitioner’s 1997

Federal income tax of $13,008 and an addition to tax for failure

to file timely under section 6651(a)(1) of $562.72.   After

concessions,1 the issues for decision are:   (1) Whether

petitioner is entitled to an overpayment based on a claimed

credit for an estimated tax payment, and (2) whether petitioner

is liable for an addition to tax under section 6651(a)(1) for

failure to file a return timely.

     Petitioner resided in Virginia Beach, Virginia, at the time

he filed the petition.   We combine our findings of fact and

conclusions for convenience.

     Petitioner’s 1997 Federal income tax return2 reflects Kelly

K. White (Mrs. White) as petitioner’s spouse, her Social Security

number, and petitioner’s filing status as married filing a joint

return.   The return also reflects both petitioner’s and Mrs.

White’s total wage income of $94,787, total tax liability of

$16,561, total Federal income tax withheld of $14,686, an

estimated tax payment of $6,000, and a refund of $4,125.      The


     1
        The parties agree that there is no deficiency in tax.
They further agree that, if petitioner is not entitled to the
claimed credit for an estimated tax payment and amount applied
from the 1996 return (estimated tax payment) of $6,000, then
after taking into account withholding credits and a payment in
the amount of $945, the net amount of tax due is $930. Secs.
6211(b)(1), 6651(b)(1).
     2
        See our discussion infra with respect to the addition to
tax under sec. 6651(a)(1) where we conclude that the 1997 return
was executed and timely filed by petitioner.
                                - 3 -

return appears to have been signed by petitioner on three

separate occasions:    April 5, 1998, September 30, 2000, and

November 28, 2000.    In addition, the 1997 return reflects a

stamped date of December 1, 2000, which is the date that

respondent’s Office of Appeals received the return and which is

also purportedly the first date that respondent received the

return.   Although the return does not reflect Mrs. White’s

signature, respondent now agrees that petitioner is entitled to

joint return filing status.

     The notice of deficiency issued to petitioner on July 10,

2000, determined a deficiency in income tax of $13,008 based on

petitioner’s individual income of $64,704.    The notice of

deficiency was issued based on respondent’s determination that

petitioner did not file a return for 1997.    Respondent now agrees

that the 1997 return submitted by petitioner is correct, except

to the extent that petitioner has claimed a credit for an

estimated tax payment.    Respondent asserts that petitioner did

not file a return for the 1997 taxable year until December 1,

2000.

     Petitioner alleges that he is owed a refund of $4,125

because he “rolled over” an estimated tax payment and amount

applied from 1996 of at least $6,000 from a prior tax year.     He

explained at trial that he mailed a payment of $945 with the 1997
                                - 4 -

return because “that’s the amount I would have owed if they

didn’t give me credit for the $6,000.”

     When a notice of deficiency is issued to a taxpayer

determining a deficiency, and a timely petition has been filed,

we have jurisdiction to take into account payments and credits to

decide the proper amount of the deficiency or overpayment.      Sec.

6512(b); Naftel v. Commissioner, 85 T.C. 527, 531 (1985).

Accordingly, we review the record of such payments to properly

consider petitioner’s claim.

     Generally, the burden of proof is on petitioner.    Rule

142(a)(1).   The burden of proving facts relevant to the

deficiency may shift to the Commissioner under section 7491 if

the taxpayer establishes compliance with the requirements of

section 7491(a)(2)(A) and (B) by substantiating items,

maintaining required records, and fully cooperating with the

Secretary’s reasonable requests.   Section 7491 also places the

burden of production upon the Secretary with respect to additions

to tax.   Sec. 7491(c).   Section 7491 is effective with respect to

court proceedings arising in connection with examinations by the

Commissioner commencing after July 22, 1998, the date of its

enactment by section 3001(a) of the Internal Revenue Service

Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat.

685, 726.    See Higbee v. Commissioner, 116 T.C. 438 (2001).
                                 - 5 -

     It is not clear from the record when respondent commenced

the audit of petitioner’s return; however, petitioner has not

alleged that section 7491 is applicable to this case.    Even if

section 7491 were to apply, we would decide this case without

regard to the burden of proof.

     Respondent sent petitioner a letter dated March 4, 1996,

stating that there was an overpayment of tax and that petitioner

was owed a refund of $2,318 with respect to the 1995 taxable year

that respondent applied to reduce (but not eliminate)

petitioner’s income tax liability for the 1992 taxable year.     A

Notice of Levy on Wages, Salary, and Other Income dated October

2, 1996, that respondent issued to petitioner’s employer provides

that petitioner had an unpaid balance of assessed taxes for the

1992 taxable year.

     Forms 4340, Certificate of Assessments, Payments, and Other

Specified Matters, for the 1992, 1993, and 1994 taxable years do

not reflect an overpayment made by or a credit owed to

petitioner.   Petitioner’s return and Form 4340 for the 1995

taxable year both reflect an income tax of $3,594 and a

withholding credit of $5,912.    Form 4340 for 1995 reflects that

an overpayment credit of $2,318 was transferred to petitioner’s

1992 taxable year.   Petitioner’s Federal income tax return3 and


     3
         The return for the 1996 taxable year was also jointly
filed.
                                - 6 -

Form 4340 for the 1996 taxable year both reflect an income tax of

$10,838 and a withholding credit of $12,544, resulting in a

refund to petitioner of $1,706.    The transcript of account for

the 1996 taxable year reflects a refund of $1,706, plus interest,

that was paid to petitioner on April 23, 2001.4

     Petitioner’s uncorroborated and vague testimony regarding

his claimed credit for an estimated tax payment of $6,000 is not

credible.    See Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).

A review of petitioner’s most recent returns and records does not

support his testimony, and there is no indication that petitioner

is entitled to an overpayment or credit.    We conclude that

petitioner has not made an overpayment and is not due a refund

for the 1997 taxable year.

     The next issue for decision is whether petitioner is liable

for an addition to tax under section 6651(a)(1).    Section

6651(a)(1) imposes an addition to tax on the failure to file

timely any return required to be filed, unless it is shown that

such failure is due to reasonable cause and not due to willful

neglect.    Section 6011(a) provides that a taxpayer who is

required to make a return shall do so “according to the forms and

regulations prescribed by the Secretary.    Every person required


     4
        When a taxpayer elects to have an overpayment refunded to
him, he may not change his election to have the overpayment
applied as a payment on account of his estimated income tax.
Sec. 301.6402-3(d), Proced. & Admin. Regs.
                               - 7 -

to make a return or statement shall include therein the

information required by such forms or regulations.”     In Beard v.

Commissioner, 82 T.C. 766, 777 (1984), affd. 793 F.2d 139 (6th

Cir. 1986), the Court determined that the test for the

sufficiency of a return for the purpose of section 6651(a)(1) is

as follows:

     First, there must be sufficient data to calculate tax
     liability; second, the document must purport to be a return;
     third, there must be an honest and reasonable attempt to
     satisfy the requirements of the tax law; and fourth, the
     taxpayer must execute the return under penalties of
     perjury.

A taxpayer’s failure to attach a Form W-2 to the return “does not

prevent the calculation of tax liability.”     Blount v.

Commissioner, 86 T.C. 383, 387 (1986).

     Respondent claims that petitioner did not file a return

until December 1, 2000, which is after respondent issued the

notice of deficiency.   Respondent has recalculated the addition

to tax under section 6651(a)(1) as 25 percent of the net amount

of tax due of $930, which is $233.     See sec. 6651(b)(1).

     Petitioner testified that he timely filed the return for the

1997 taxable year.   Petitioner points to a letter respondent sent

to petitioner and Mrs. White dated May 30, 2000, to support his

position.   This letter provides, in part, as follows:

     We received your Dec. 31, 1997 federal individual
     income tax return, but we need more information to process
     the return accurately. * * *

     We need a form with information that supports the entry of
                                - 8 -

     $14,686.00 on line 57 * * *. It could be Form W-2 (for wage
     income), Form W-2G (for gambling winnings), or Form 1099-R
     (for pension income). * * *

     Your return doesn’t show your signature(s). Please sign
     the declaration below and note the additional requirements
     that may apply to you:

     1. If this is a joint return, both husband and wife must
     sign the declaration.

Petitioner concedes that the return lacked Mrs. White’s

signature, but he asserts that he signed the return on April 5,

1998.   Respondent has failed to explain this letter and his

position that no return was filed until December 1, 2000.    Based

on this record we find that the return received by respondent as

acknowledged in the letter dated May 30, 2000, contained

petitioner’s signature.    Moreover, petitioner’s failure to attach

a Form W-2 to the return does not render the return insufficient.

Blount v. Commissioner, supra at 387.

     Petitioner signed a copy of the original return a second

time on September 30, 2000, and a third time on November 28,

2000.   He testified that he re-signed the return either at the

request of respondent’s revenue agent who had been conducting the

audit of petitioner’s prior returns, or in response to a letter

sent by respondent informing petitioner that the return required

an original signature.    We note that the revenue officer

acknowledged receipt of petitioner’s 1992 and 1993 returns by

letter dated March 19, 1997; however, this letter does not

acknowledge petitioner’s 1997 return.    Petitioner appears to have
                                - 9 -

included the same cover letter with each of the re-signed copies

of the return because the cover letter appears to have been

signed on September 30, 2000, and November 28, 2000.      We are not

persuaded that the additional signatures on the return are

evidence that petitioner filed his return untimely.

     We note that respondent received petitioner’s check of $945

in April 1998, as reflected on Form 4340 and the transcript of

account for the 1997 taxable year.      Respondent’s receipt of this

check supports petitioner’s claim of timely filing of the 1997

return.

     Petitioner obtained a 4-month extension for timely filing

the 1997 return.   Although petitioner had no recollection at

trial of filing the request for the extension, he explained that

he normally filed a request for an extension as a matter of

course.   While we recognize that petitioner’s request for an

extension of time might suggest that the return was filed after

April 15, 1998, other facts in the record, as previously

discussed, persuade us that the 1997 return was, in fact, timely

filed.    Accordingly, petitioner is not liable for an addition to

tax for failure to file timely under section 6651(a)(1).

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                        Decision will be entered

                                under Rule 155.
