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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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