Rodney L. Burr - Page 9




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          notify respondent that petitioner was seeking a credit of a 1994            
          overpayment.  The petition seeks not a credit but a “Tax Payment            
          carry-forward”, a term of petitioner’s invention.  In any event,            
          we have held in similar circumstances that the Commissioner was             
          not required to plead affirmatively that an overpayment was time-           
          barred under section 6512(b)(3).  See Gabelman v. Commissioner,             
          T.C. Memo. 1993-592, affd. 86 F.3d 609 (6th Cir. 1996).                     
          Moreover, respondent’s position that a credit of petitioner’s               
          1994 overpayment is time barred was clearly stated in his trial             
          memorandum, and we are unable to discern any prejudice to                   
          petitioner.  See id.                                                        
               Finally, petitioner attempts to avoid the consequences of              
          the Internal Revenue Code’s prescribed limitations periods by               
          arguing that his effort to apply his 1994 overpayment against his           
          1995 tax liability is not a “credit” but instead a “payment                 
          carryforward”.  A “payment carryforward”, petitioner claims, is             
          not subject to the period of limitations provided in section                
          6511.  Petitioner derives the concept of a “payment carryforward”           
          from section 6513(d)2 and contends that that section entitles him           

               2 Sec. 6513(d) provides:                                               
               SEC. 6513.  TIME RETURN DEEMED FILED AND TAX CONSIDERED                
                                                             (continued...)           










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