Bobby B. Smathers and Kathleen N. Smathers - Page 4




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          has no record of receiving petitioners’ 1994 return before                  
          January 14, 1999.                                                           
               Petitioners presented no documentation, such as a registered           
          or certified mail receipt, as to the filing of their 1994 return.           
          Petitioner husband’s testimony about mailing petitioners’ 1994              
          joint return was vague, as he was unable to recall even whether             
          he mailed it from North Carolina or Georgia.  Moreover, the                 
          record shows that petitioners are chronic late filers of their              
          Federal income tax returns, which weighs against their                      
          credibility in this regard.  We conclude and hold that                      
          petitioners have failed to prove that they mailed their 1994                
          joint Federal income tax return before the notices of deficiency            
          were issued.                                                                
               Consequently, the 2-year look-back period of section 6511              
          applies, and petitioners are entitled to a refund only of taxes             
          paid within the 2 years immediately prior to the date the notices           
          of deficiency were mailed.  See secs. 6511(a) and (b)(2)(B);                
          Commissioner v. Lundy, supra at 243.                                        
               Petitioners’ 1994 Federal tax withholdings are deemed paid             
          on April 15, 1995, see secs. 6513(a) and (b)(1), more than 2                
          years before December 18, 1997, when respondent issued the                  
          notices of deficiency.  Thus, we lack authority to award                    
          petitioners a refund of their 1994 overpayment.  See id.                    








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