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as to factual issues may shift to the Commissioner under certain
prescribed circumstances. Sec. 7491(a). In the present case,
there is no dispute with respect to any factual issues, and
therefore section 7491(a) is not applicable.
The notice of deficiency reflects tax payments petitioner
made for 1999 as withholding credits.3 Such payments are deemed
to have been made as of April 15, 2000. See sec. 6513(b)(1).
Since the withholding taxes were paid more than 2 years before
the notice of deficiency was mailed, March 12, 2004, petitioner
is not entitled to a refund of any part of an overpayment for
1999.
We do not accept petitioner’s assertion that respondent
waited to notify petitioner of the failure to file a return, so
as to preclude the refund of the overpayment. There is nothing
in this record reflecting such motivation by respondent, and in
any event respondent is permitted to examine tax years, determine
a deficiency, and make an assessment within the applicable period
of limitations provided under section 6501. In a situation where
a taxpayer does not file a Federal income tax return, respondent
may determine a deficiency and assess a tax at any time. Sec.
6501(c)(3). The inability of petitioner to obtain a refund of
3 We note that the determination of a statutory deficiency
does not take such amount into account. See sec. 6211(b)(1).
However, the withholding will be credited and applied against the
deficiency.
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Last modified: May 25, 2011