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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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Last modified: May 25, 2011