Carroll , 650 F.2d 287 ( 1980 )

Taxes; income tax; jurisdiction of court; suit must be brought within 3 years after payment; 26 U.S.C. § 6513. — On June 6,1980 the court entered the following order:

Before Friedman, Chief Judge, Nichols and Smith, Judges.

Plaintiffs, married taxpayers filing jointly, sue for refund of taxes withheld in 1972. Plaintiffs’ 1972 income tax return was not filed until April 9, 1977, allegedly due to misunderstood advice of a tax accountant. The tax accountant had explained the availability of income averaging to plaintiffs. In accordance with their erroneous understanding of those provisions, plaintiffs waited four years before filing their 1972 tax return and averaged their income over the intervening years. That return showed a refund of taxes due plaintiffs in the amount of $97.88.

By letter dated January 25, 1978, the Internal Revenue Service regional office informed plaintiffs that the claimed refund would not be forthcoming because of the untimeliness of their claim. Thereafter, plaintiffs filed suit for refund in this court. The government has moved to dismiss and plaintiffs have failed to respond.

Under section 6511(b) of the Internal Revenue Code, any credit or refund may not exceed the amount of the disputed tax paid within the three years preceding the filing of the claim. York v. United States, 211 Ct. Cl. 356 (1976). Since under § 6513(b)(1) the taxes claimed for refund are deemed to have been paid on April 15, 1973, and that date is not within the three years preceding the filing of plaintiffs’ return (which is treated as a claim for refund), plaintiffs’ claim is barred for failure to file a timely claim for refund.

it is therefore ordered that defendant’s motion to dismiss is granted and plaintiffs’ petition is dismissed.