Michael Zarky - Page 3

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               Petitioner did not file a 1999 Federal income tax return.              
          His taxable income for that year totaled $874, all from interest            
          earned on his savings accounts.  The payors of that interest                
          notified respondent that they had paid this interest to                     
          petitioner as income and that they had withheld $270 of it as               
          Federal income tax.  Respondent was also notified by a brokerage            
          firm that petitioner had during 1999 received $212,029 from                 
          brokerage sales.                                                            
               Respondent determined in the relevant notice of deficiency             
          mailed to petitioner on February 27, 2003, that petitioner’s 1999           
          gross income included both the $212,029 and the $874.  Respondent           
          has since conceded that none of the $212,029 was so includable              
          and that petitioner has overpaid his 1999 Federal income tax by             
          the withheld amount of $270.                                                
                                       OPINION                                        
               Petitioner seeks the $270 that he overpaid for 1999.                   
          Respondent argues that petitioner is not entitled to that amount            
          because, respondent states, none of it was paid within the 2-year           
          period of section 6511(a).                                                  
               We conclude that petitioner is entitled to the $270                    
          overpayment.  Section 6512(b)(1) empowers this Court to determine           
          the existence and amount of any overpayment of tax to be refunded           
          for a year before us.  Under section 6512(b)(3)(B), however, we             
          may not award a refund in a case such as this unless we determine           






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