                  T.C. Summary Opinion 2005-19



                     UNITED STATES TAX COURT



              THOMAS FRANCIS MORRIS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10146-04S.            Filed February 23, 2005.


     Thomas Francis Morris, pro se.

     Nina P. Ching, 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.
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     Respondent determined that petitioner is liable for a

deficiency in Federal income tax for the taxable year 1999 in the

amount of $12,410.    Following respondent’s concession that

petitioner overpaid his 1999 tax by $5,783, the issue for

decision is whether the overpayment is time barred by section

6511(b)(2).

     Some of the facts have been stipulated, and they are so

found.   The stipulation of facts and exhibits are incorporated

herein by this reference.    At the time of filing the petition,

petitioner resided in Nashua, New Hampshire.

     During 1999 petitioner was employed by Alpha Processor, Inc.

and received salary in the amount of $63,139.    The salary was

subject to withholding in the amount of $15,127.    Petitioner did

not file a Federal income tax return for 1999.    By letter dated

December 1, 2003, respondent advised petitioner that respondent

had not received petitioner’s return and calculated a tax based

on information provided by third parties.    On March 12, 2004,

respondent issued a notice of deficiency to petitioner

determining a deficiency for the taxable year 1999.1   A timely

petition was filed.




     1
        Respondent also issued a notice of deficiency dated Mar.
26, 2004. The notice is a duplicate of the Mar. 12, 2004,
notice. It appears that the notice was issued in error, and in
any event a timely petition was filed in response to the March 12
notice, and accordingly the March 26 notice is of no consequence.
                                - 3 -

     At some later point, petitioner presented information with

respect to itemized deductions, and the parties appear to agree

that the deficiency is $9,344 and that there was excess

withholding for 1999 in the amount of $5,783.

     Because the parties agree that petitioner’s withholding

credits exceed the amount of tax due as redetermined, the

question is whether petitioner is entitled to a refund of an

overpayment in the amount of $5,783 for the 1999 taxable year.

The only issue related to this overpayment is whether it is time

barred by section 6511(b)(2).

     Petitioner claims that he is entitled to a determination of

an overpayment of his 1999 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).   In response,

petitioner asserts that respondent deliberately timed the notice

of deficiency so as to prevent petitioner from obtaining credit

for the overpayment of tax.

     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
                                - 4 -

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

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

(1996); Hart v. Commissioner, T.C. Memo. 1999-186; Stevens v.

Commissioner, T.C. Memo. 1996-250.

     In general a taxpayer bears the burden of proof.    See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).    The burden



     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
     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.
                               - 5 -

as to factual issues may shift to the Commissioner under certain

prescribed circumstances.   Sec. 7491(a).   In the present case,

there is no dispute with respect to any factual issues, and

therefore section 7491(a) is not applicable.

     The notice of deficiency reflects tax payments petitioner

made for 1999 as withholding credits.3    Such payments are deemed

to have been made as of April 15, 2000.     See sec. 6513(b)(1).

Since the withholding taxes were paid more than 2 years before

the notice of deficiency was mailed, March 12, 2004, petitioner

is not entitled to a refund of any part of an overpayment for

1999.

     We do not accept petitioner’s assertion that respondent

waited to notify petitioner of the failure to file a return, so

as to preclude the refund of the overpayment.    There is nothing

in this record reflecting such motivation by respondent, and in

any event respondent is permitted to examine tax years, determine

a deficiency, and make an assessment within the applicable period

of limitations provided under section 6501.    In a situation where

a taxpayer does not file a Federal income tax return, respondent

may determine a deficiency and assess a tax at any time.    Sec.

6501(c)(3).   The inability of petitioner to obtain a refund of



     3
        We note that the determination of a statutory deficiency
does not take such amount into account. See sec. 6211(b)(1).
However, the withholding will be credited and applied against the
deficiency.
                                   - 6 -

his overpayment is the direct result of his failure to file a

return and pursuant to the application of the above-described

provisions of the Internal Revenue Code.

       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 1999

tax.    See Commissioner v. Lundy, supra; Badger v. Commissioner,

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

       Reviewed and adopted as the report of the Small Tax Case

Division.

       To reflect the foregoing,

                                                Decision will be entered

                                        for respondent as to the

                                           deficiency in the amount of

                                           $9,344 and for respondent as

                                           to the overpayment.
