Belinda Landrea Dennard - Page 6

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               If the claim was not filed within that 3-year period, the              
          taxpayer is entitled to a refund of only those taxes paid during            
          the 2 years immediately preceding the filing of the refund claim.           
          Sec. 6511(b)(2)(B).  If no claim is filed, the credit or refund             
          cannot exceed the amount that would be allowable under section              
          6511(b)(2)(A) or (B) if a claim were filed on the date the credit           
          or refund is allowed.  Sec. 6511(b)(2)(C).  Moreover, in the case           
          of any overpayment by a taxpayer, the Commissioner generally may,           
          within the applicable period of limitations, credit the amount of           
          such overpayment against any tax liability of that taxpayer.                
          Sec. 6402(a).                                                               
               Petitioner’s 1997 joint Federal income tax return was filed            
          on April 15, 1998.1  A refund claim was not filed within 3 years            
          of the date of filing of the return.  A payment on the 1997 tax             
          liability was made on February 19, 2001, when the overpayment for           
          2000 was offset against the 1997 tax liability.  Petitioner’s               
          request for relief on Form 8857 was submitted on May 19, 2003.              
          The claim for refund was not filed within 2 years of the February           
          19, 2001, payment.  See Driggers v. Commissioner, T.C. Memo.                
          2004-76.                                                                    





               1For purposes of sec. 6511, a return filed before the last             
          day for filing shall be considered as filed on the last day.                





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