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the years at issue. We have jurisdiction to consider whether a
payment that should have been applied to reduce the outstanding
liability for a year at issue was wrongly applied to a liability
for another year. Freije v. Commissioner, 125 T.C. 14 (2005).
Petitioner failed to introduce any evidence regarding the
alleged installment agreement or its terms. If a party fails to
introduce evidence within that party’s possession, we may presume
that, if produced, the evidence would be unfavorable to that
party. Wichita Terminal Elevator Co. v. Commissioner, 6 T.C.
1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947). This is
true where the party which does not produce the evidence has the
burden of proof or the other party has established a prima facie
case. Id. As noted supra, petitioner bears the burden of proof
in the matter before us. Accordingly, we conclude that the
evidence does not establish that respondent was required to apply
petitioner’s $750 per month payments to his liabilities for the
years at issue before applying them to his liabilities for other
years.
Petitioner also argued that respondent erred by failing to
apply alleged overpayments for years prior to the years in issue
to reduce petitioner’s liabilities for the years in issue. See
Landry v. Commissioner, 116 T.C. 60 (2001). Petitioner, however,
failed to make a timely claim for credit or refund with regard to
the alleged overpayments. See sec. 6511; Landry v. Commissioner,
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Last modified: November 10, 2007