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refund or credit only if petitioner paid the tax at issue within
the 2 years preceding the April 22, 1996, issuance of the notice
of deficiency.8 Under section 6513(b)(1), the withholding taxes
making up petitioner’s overpayment for 1989 were deemed paid on
April 15, 1990. As the tax at issue was paid more than 2 years
prior to the issuance of the notice of deficiency, this Court
lacks jurisdiction to award a credit or refund of the
overpayment.
Issue 4. Additions to Tax Under Section 6651(a)(1)
Respondent determined that petitioner is liable for the
section 6651(a)(1) addition to tax for each of the years at issue
but subsequently conceded the addition for 1989. Section
6651(a)(1) provides for an addition to tax for failure to file a
Federal income tax return by its due date, determined with regard
to any extension of time for filing, unless it is shown that such
failure is due to reasonable cause and not due to willful
neglect. The addition to tax equals 5 percent of the amount
required to be shown as tax on the return for each month or
fraction thereof during which the failure to file continues, up
to a maximum of 25 percent. Sec. 6651(a)(1).
8 For taxable years ending after Aug. 5, 1997, the 2-year
look-back period is increased to 3 years where a notice of
deficiency is issued during the third year after the due date for
filing the tax return and no return was filed before the date of
the notice. See sec. 6512(b)(3), as amended by the Taxpayer
Relief Act of 1997, Pub. L. 105-34, sec. 1282(a), 111 Stat. 1037.
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