Don Mahoney - Page 8




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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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