Rodney L. Burr - Page 11




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          previously noted, section 6402(b) incorporates a requirement that           
          any claim for a credit or refund must be filed within the section           
          6511 period of limitations applicable to claims for overpayment             
          credits.  Thus, section 6513(d) operates only where a credit for            
          an overpayment has been claimed within the applicable period of             
          limitations.  That section is of no help to petitioner.3                    
               Based on the foregoing, we conclude that petitioner does not           
          have an overpayment in his 1995 taxable year.  Because any credit           
          of the 1994 overpayment against petitioner’s estimated tax for              
          1995 is time-barred, petitioner’s payments with respect to 1995             
          consist solely of the $2,578 withheld from his wages in that                
          year.  The parties agree that the tax imposed on petitioner for             
          1995 is $4,087.  Therefore the deficiency for that year is                  
          $4,087; i.e., the amount by which the tax imposed exceeds the               
          amount shown on the return.  The amount shown on the return for             
          this purpose is zero where no return is filed prior to issuance             
          of the notice of deficiency.  See Laing v. United States, 423               
          U.S. 161, 173 (1976); Hartman v. Commissioner, 65 T.C. 542, 546             
          (1975); sec. 301.6211-1(a), Proced. & Admin. Regs.  Accordingly,            


               3 Petitioner’s notion that the “payment carryforward” he               
          finds authorized in sec. 6513(d) is not a “credit” of an                    
          “overpayment” as those terms are used in the Code is belied by              
          the express terms of that section.  Sec. 6513(d) refers to an               
          “overpayment” that is claimed as a “credit” in accordance with              
          sec. 6402(b).  This latter section is itself expressly concerned            
          with the “Authority to make credits or refunds * * * [in] the               
          case of any overpayment”.  Sec. 6402.                                       





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