                   T.C. Summary Opinion 2001-4



                     UNITED STATES TAX COURT



                 JANET S. SHAPIRO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17511-99S.                  Filed January 22, 2001.


     Janet S. Shapiro, pro se.

     Louise Forbes, 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.
                                - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax of $17,488 and additions to tax under section

6651(a)(1) of $1,511.77, under section 6651(a)(2) of $839.87, and

under section 6654(a) of $293.93 for the taxable year 1996.

     The issue remaining for decision is whether petitioner is

entitled to a refund for an overpayment of $6,601 for the taxable

year 1996.1

     At the time of filing the petition herein, petitioner

resided at Chestnut Hill, Massachusetts.

     Petitioner did not file a Federal income tax return for the

taxable year 1996.   Respondent issued a notice of deficiency on

August 11, 1999.   The notice determined that petitioner received

items of income such as wages, dividends, and gains on the sale

of stock and failed to report such on an income tax return for

1996.    Respondent allowed petitioner the standard deduction under

section 63(c).

     Petitioner timely filed a petition with this Court disputing

the deficiency and arguing that respondent failed to take into

account various losses from rental property and two “S”

corporations.    Petitioner also asserted that respondent did not




     1
          The parties agree that petitioner’s withholding of
$10,769 exceeds her income tax liability of $4,168. Respondent
concedes that the additions to tax under secs. 6651(a)(1),
6651(a)(2), and 6654(a) are inapplicable due to the excess
withholding credits.
                               - 3 -

credit petitioner with various itemized deductions in excess of

the standard deduction.

     At trial, the parties agreed that the deficiency in tax is

$4,168, and that petitioner is entitled to a withholding credit

of $10,769.   Petitioner, however, argues that she is entitled to

a refund in the amount of $6,601.

     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 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
                                                   (continued...)
                                - 4 -

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.

     The only tax payments petitioner made for 1996 were

withholding credits.    Such credits are deemed to have been paid

as of April 15, 1997.   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 1996.    The statutorily imposed

time limitations of sections 6511 and 6512 bar us from




     2
      (...continued)
     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.
     3
          Petitioner testified that she filed an extension of
time to file her income tax return. Petitioner did not present a
copy of the request for extension. Assuming an extension of time
to file the 1996 return was in effect, such an extension of time
is not given any effect in determining the last day prescribed
for filing a return and will not operate to change the payment
date of Apr. 15, 1997. See sec. 301.6513-1(a), Proced. & Admin.
Regs.
                                 - 5 -

determining that petitioner is entitled to a refund with respect

to her 1996 tax.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         A decision will be entered for

                         respondent as to the deficiency in the

                         reduced amount agreed to and as to the

                         overpayment for 1996 and for petitioner

                         as to the additions to tax.
