Mark E. Schroeder - Page 5




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          years at issue.  Thus, we may award a refund of tax only for                
          those amounts paid within the 2 years preceding the date                    
          respondent issued the notices of deficiency.                                
               Respondent mailed the notices of deficiency on October 24,             
          1997.  We may order a refund of any overpayments petitioner made            
          within the 2 years preceding October 24, 1997.  Petitioner's                
          payments of taxes for 1992, 1993, and 1994 were made by Fairchild           
          through withholding.  Withheld income taxes are deemed paid on              
          April 15 of the year following the taxable year.  See sec.                  
          6513(b)(1).  Thus, petitioner is deemed to have paid income tax             
          for 1992 on April 15, 1993, for 1993 on April 15, 1994, and for             
          1994 on April 15, 1995, all of which dates are more than 2 years            
          before October 24, 1997.  Thus, we lack jurisdiction to order a             
          refund of petitioner's overpayments for those years.                        
          Commissioner v. Lundy, supra at 243.  However, petitioner paid or           
          is deemed to have paid income tax for 1995 on April 15, 1996,               
          which payment is less than 2 years before October 24, 1997.                 
          Petitioner is entitled to receive a refund of his overpayment of            
          tax for 1995.                                                               
          B.   Whether Equitable Recoupment Applies                                   
               Petitioner relies on Rothensies v. Electric Storage Battery            
          Co., 329 U.S. 296 (1946), and Bull v. United States, 295 U.S.               
          247, 261 (1935), for the proposition that equitable recoupment              








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