Patrick T. McGuinness - Page 8




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               Section 6511(b)(2) is entitled “Limit On Amount Of Credit Or           
          Refund”.  In a case such as the present one, where the date of              
          the mailing of the notice of deficiency (August 22, 2005) is                
          beyond the third year after the due date for filing the 2001                
          return (April 15, 2002) and no return was filed by the taxpayer             
          before that date (i.e., August 22, 2005), section 6511(b)(2)(B)             
          applies to limit the amount of any refund or credit that may be             
          made or allowed.  See Commissioner v. Lundy, 516 U.S. 235 (1996);           
          Healer v. Commissioner, 115 T.C. 316, 319-320 (2000); cf. sec.              
          6512(b)(3), flush language; Zarky v. Commissioner, 123 T.C. 132             
          (2004).  Section 6511(b)(2)(B) provides that “the amount of the             
          credit or refund shall not exceed the portion of the tax paid               
          during the 2 years immediately preceding the filing of the                  
          claim.”  Therefore, because petitioner’s claim for refund is                
          deemed to have been filed on August 22, 2005, see sec.                      
          6512(b)(3)(B), then only tax paid during the immediately-                   
          preceding 2-year period may be refunded (or credited).                      
               In the present case, petitioner paid no income tax other               
          than through withholding on his wages.  Income tax withheld by a            
          taxpayer’s employer is deemed to have been paid by the taxpayer             
          on April 15 of the year immediately following the calendar year             
          for which the tax was withheld.  Sec. 6513(b)(1).  Therefore,               
          petitioner is deemed to have paid the tax for which he seeks a              
          refund on April 15, 2002.  But, because petitioner did not pay              
          any income tax during the 2 years immediately preceding August              





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