                     T.C. Summary Opinion 2011-137



                        UNITED STATES TAX COURT



                   ABDELRAHMAN RABIE, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 2390-10S.             Filed December 12, 2011.



        Abdelrahman Rabie, pro se.

        Timothy B. Heavner, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.     Pursuant to section 7463(b),

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

and this opinion shall not be treated as precedent for any other

case.     Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year at issue,
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and Rule references are to the Tax Court Rules of Practice and

Procedure.

     Respondent determined a deficiency in petitioner’s Federal

income tax of $11,987 for 2005.   Respondent also determined for

2005 an addition to tax for failure to file timely under section

6651(a)(1) of $395.77 and an addition to tax for failure to pay

timely under section 6651(a)(2) of $351.80.

     The parties agree that petitioner has overpaid his Federal

income tax for 2005.   After other concessions by the parties, the

only issue for decision is whether petitioner is entitled to a

refund or credit of Federal income tax for 2005.

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the exhibits received in evidence

are incorporated herein by reference.    Petitioner resided in

Virginia when the petition was filed.

                            Background

     Petitioner requested on an undated Form 4868, Application

for Automatic Extension of Time To File U.S. Individual Income

Tax Return, and was granted an extension of time to file his 2005

Federal income tax return until October 15, 2006.    On Form 4868

he estimated his total tax liability for 2005 to be $8,320 and

his total 2005 payments as $10,229.    The “Balance due” to the

Internal Revenue Service (IRS), shown on line 6 of the Form 4868,
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should be obtained by subtracting total payments from the total

estimated tax liability.   Petitioner wrote “$1,909” on line 6.

     Petitioner sent the IRS a letter dated September 23, 2008,

in which he apologized for the “delay” in filing his Federal

income tax returns for 2005 and 2006.    He requested in the letter

a further extension of time, until December 31, 2008, to file his

returns and stated that “I had [sic] always received refunds and

I know that it will be the same for the [sic] 2005 and 2006.”

     Respondent mailed petitioner the notice of deficiency in

this case on October 26, 2009.

     The parties agree that before October 15, 2009, petitioner

made no formal claim for refund on a Form 1040, U.S. Individual

Income Tax Return, or a Form 1040X, Amended U.S. Individual

Income Tax Return, for taxable year 2005.   IRS records indicate

that on February 1, 2010, a return for 2005 was filed for

petitioner.   On September 20, 2010, petitioner mailed the IRS a

“corrected” return for 2005.   The parties agree that with the

“corrected” return petitioner has now filed an accurate Form 1040

for 2005.

                            Discussion

     Generally, the Commissioner’s determinations in a notice of

deficiency are presumed correct, and the taxpayer has the burden

of proving that those determinations are erroneous.   See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).    In some
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cases the burden of proof with respect to relevant factual issues

may shift to the Commissioner under section 7491(a).       As there is

no dispute as to a factual issue in this case, section 7491(a) is

not applicable.

     A taxpayer seeking a refund of overpaid taxes ordinarily

must file a timely claim for a refund with the IRS that meets the

requirements of section 6511.    That section contains two separate

provisions for determining the timeliness of a refund claim:      The

taxpayer must file a claim for a refund “within 3 years from the

time the return was filed or 2 years from the time the tax was

paid, whichever of such periods expires the later, or if no

return was filed by the taxpayer, within 2 years from the time

the tax was paid.”    Sec. 6511(a)(1).

     Section 6511 also defines two “lookback” periods:      if the

claim is filed “within 3 years from the time the return was

filed”, then the taxpayer is entitled to a refund of the portion

of the tax paid within the 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).   If the claim is not

filed within that 3-year period, then the taxpayer is entitled to

a refund of only that “portion of the tax paid during the 2 years

immediately preceding the filing of the claim.”     Sec.

6511(b)(2)(B).    If no claim has been filed the refund cannot

exceed the amount that would be allowable under section
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6511(b)(2)(A) or (B) if a claim was filed on the date the refund

is allowed.    Sec. 6511(b)(2)(C).

     Petitioner argues that either his undated Form 4868 or his

previously described September 23, 2008, letter to respondent was

an informal claim for refund within the prescribed time limits of

section 6511.

     The purpose of a claim for refund is to put the Commissioner

on notice that the taxpayer is asserting a right with respect to

an overpayment of tax.     Newton v. United States, 143 Ct. Cl. 293,

163 F. Supp. 614, 618 (1958).    The Supreme Court has held that a

taxpayer’s notice to the IRS that fairly advises it of the nature

of the taxpayer’s claim which the IRS could reject because it is

too general or because it does not comply with the formal

requirements of the statute and regulations issued thereunder

will still be treated as a claim where the defects and lack of

specificity have been remedied by amendment filed after the lapse

of the statutory period.     United States v. Kales, 314 U.S. 186,

194 (1941) (and cases cited thereat).

     Each case must be decided on its own facts and circumstances

in determining whether the IRS should have focused attention on

the merits of the “particular dispute” raised by the informal

claim.    Angelus Milling Co. v. Commissioner, 325 U.S. 293, 297

(1945).    It is not enough, however, that the facts supporting the

claim reach the IRS in some “roundabout” fashion.     Id.   “The
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evidence should be clear that the Commissioner understood the

specific claim that was made even though there was a departure

from form in its submission.”   Id. at 297-298.

     In Kaffenberger v. United States, 314 F.3d 944, 955-956 (8th

Cir. 2003), under the peculiar facts of that case, the court held

a Form 4868 satisfied the “written component” requirement of an

informal claim.   According to the court in Kaffenberger, the Form

4868, along with the other communications between the taxpayer

and the IRS, provided the Commissioner sufficient notice that the

taxpayer was claiming a credit to be applied to a subsequent

year’s tax liability.

     In Khinda v. Commissioner, T.C. Memo. 1994-617, this Court

stated that Form 4868 is based on the information available to

the taxpayer when he sends it in, so that he may obtain an

automatic extension of time in which to file an individual income

tax return.   The Form 4868 does not purport to be a claim for

refund, the Court said.   And unlike a Form 1040, the Form 4868

does not contain a line on which to enter an amount to be

refunded, only a line on which to indicate the balance due.

     The Court finds that, under the facts and circumstances of

this case, the IRS could not have been expected to determine an

overpayment of tax based only on the estimate of petitioner’s

income tax liability provided by him on the Form 4868.
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     In United States v. Kales, supra at 194, the taxpayer wrote

to the IRS within the time allowed for filing a claim objecting

to action by the IRS with respect to its determination of an

overvaluation of stock in a previously filed return.    She stated

in her letter that if the IRS took the threatened action, she

would show that the stock had been undervalued and she would

claim a right to a refund.    When the IRS nevertheless took the

action complained of, the taxpayer filed a formal claim stated to

be an “amendment” of the claim in her letter.    The Court found

that the IRS could not have been in doubt “that she was setting

forth her right to a refund in the event” it took the action

about which she complained.    Id. at 195.   Her letter was

considered an informal claim for refund.

     In contrast, in Martin v. United States, 833 F.2d 655 (7th

Cir. 1987), the IRS proposed to determine a deficiency with

respect to a previously filed estate tax return.    The estate’s

representative sent the IRS a 37-page protest letter, on the last

page of which there was a demand for a refund of tax.    The court

stated that to be considered an adequate informal claim, the

writing must be “sufficient to apprise the IRS that a refund is

sought and to focus attention on the merits of the dispute so

that an examination of the claim may be commenced if the IRS

wishes.”   Id. at 660.   The court found that the letter did not

qualify as an informal claim because the taxpayer failed to
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specify why a refund was due, the demand was made before the

issue of refund seemed ripe, and it failed to put the IRS on

notice to conduct an administrative review.

     Petitioner’s letter of September 23, 2008, asks for

additional time to file his 2005 and 2006 returns and states that

he always receives refunds and he “knows that it will be the

same” for the 2005 and 2006 tax years.

     Petitioner’s letter of September 23, 2008, was premature and

unspecific.    There was no “dispute” to which the attention of the

IRS could have been drawn.    Petitioner himself had not yet

computed his tax liability.    In addition, the Court finds that

petitioner’s letter “[failed] to satisfy the most basic

requirement of a claim--advising the Commissioner that a refund

[was] being sought.”    See Hollie v. Commissioner, 73 T.C. 1198,

1214 (1980) (and cases cited thereat).    The letter stated that

petitioner “had always received refunds” and expresses the

opinion that “it will be the same” for 2005; but a refund was not

requested.    The IRS is not required to use circumstantial

evidence or to conduct an independent investigation to determine

whether a taxpayer is asking for a refund.1   Id. at 1215; see also

Kuehn v. United States, 202 Ct. Cl. 473, 480 F.2d 1319, 1322

(1973).


     1
      Petitioner’s Form 4868 contains no information that would
transform the Sept. 23, 2008, letter into an acceptable informal
claim for refund.
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     A taxpayer seeking a refund in this Court, however, does not

need to actually file a claim for refund with the IRS.      He need

only show that the tax to be refunded was paid during the

applicable lookback period.    Sec. 6512(b).   In this case, the

applicable lookback period is set forth in section 6512(b)(3)(B),

which provides that this Court cannot award a refund of any

overpaid taxes unless it first determines that the taxes were

paid “within the period which would be applicable under section

6511(b)(2) * * * 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”.

     Section 6512(b)(3)(B) treats delinquent filers of income tax

returns less favorably than those who have filed timely.       Whereas

timely filers are most likely to have the opportunity to seek a

refund in the event they are drawn into Tax Court litigation, a

delinquent filer’s entitlement to a refund in Tax Court depends

on the date of the mailing of the notice of deficiency.

Commissioner v. Lundy, 516 U.S. 235, 245 (1996).     Section

6512(b)(3)(B) directs the Tax Court to measure the lookback

period from the date on which the notice of deficiency is mailed

and not the date on which the taxpayer actually files a claim for

refund.   Id.   In the case of delinquent filers, section

6512(b)(3)(B) establishes only a 2-year lookback period, so the
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delinquent filer is not assured the opportunity to seek a refund

in this Court.   Id.   If the notice of deficiency is mailed more

than 2 years after the taxes were paid, the Court lacks

jurisdiction to award the taxpayer a refund.     Id.

     Neither the amendment of section 6512(b)(3), effective for

tax years that ended after August 5, 1997, nor its legislative

history permits the Court to deviate in this case from the

holding in Commissioner v. Lundy, supra at 245.    See Taxpayer

Relief Act of 1997, Pub. L. 105-34, sec. 1282(a) and (b), 111

Stat. 1037-1038; see also, e.g., H. Conf. Rept. 105-220, at 577-

578 (1997), 1997-4 C.B. 1457, 2047-2048.   Because the notice of

deficiency was not mailed to petitioner during the third year

after the due date for filing the return, with extension, and no

return was filed before the notice was sent, petitioner is not

entitled to a 3-year lookback period.

     Petitioner’s 2005 withheld taxes are deemed to have been

paid on April 15, 2006.   See sec. 6513(b)(1).   Because the notice

of deficiency was mailed on October 26, 2009, more than 3 years

after deemed payment of the withheld taxes, even the 3-year

lookback period, were it available, would not help petitioner.2




     2
      Petitioner’s 2005 tax return filed on Feb. 1, 2010, is a
claim for refund but was clearly not filed within 2 years from
the time the tax was paid. See secs. 6511(b)(2)(B), 6513(b)(1).
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     The Court sustains respondent’s position that petitioner is

not entitled to a refund of tax paid for 2005.   See Commissioner

v. Lundy, supra at 245.

     To reflect the foregoing,


                                          Decision will be entered

                                      under Rule 155.
