Mann v. Commissioner , 79 T.C.M. 1595 ( 2000 )

MITCHELL G. MANN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Mann v. Commissioner

No. 17895-97

United States Tax Court

T.C. Memo 2000-70; 2000 Tax Ct. Memo LEXIS 78; 79 T.C.M. (CCH) 1595;

March 3, 2000, Filed

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Decision will be entered stating that there is no deficiency, addition to tax, or accuracy-related penalty due from petitioner and there is no overpayment due to petitioner for 1990.

Mitchell G. Mann, pro se.

James J. Posedel, for respondent.

Laro, David

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LARO

MEMORANDUM OPINION

LARO, JUDGE: This case is before the Court fully stipulated. See Rule 122, Tax Court Rules of Practice and Procedure. Respondent determined a $ 9,477 deficiency in petitioner's 1990 Federal income tax, additions thereto of $ 1,119 and $ 620 under sections 6651(a)(1) and 6654, respectively, and a $ 1,895 accuracy-related penalty under section 6662(a). Following respondent's concession that petitioner has no Federal income tax liability for 1990, we must decide whether petitioner may receive a refund for that year. We hold he may not. Unless otherwise indicated, section references are to the applicable versions of the Internal Revenue Code.

BACKGROUND

Petitioner never filed a 1990 Federal income tax return. Respondent issued to petitioner a notice of deficiency for that year on May 21, 1997, ^{*79 respondent's determinations shown therein.}

On or about April 15, 1991, petitioner filed a Form 4868, Extension Of Time to File U.S. Individual Tax Returns, with the Commissioner and enclosed a $ 5,000 payment. Petitioner later filed with the Commissioner a second request for an extension of time to file his 1990 tax return. The Commissioner granted both requests. On February 6, 1992, petitioner paid another $ 25 towards his tax liability for 1990.

DISCUSSION

Petitioner argues that he is entitled to a $ 5,000 refund for 1990 because he tendered that amount to the Commissioner as a deposit. Respondent argues that petitioner tendered the $ 5,000 to the Commissioner as a payment of tax for 1990, and, hence, that he may not receive a refund of any of that amount because it was paid more than 2 years before respondent issued the notice of deficiency.

We agree with respondent. Petitioner must demonstrate that his claim for refund is timely. See Flagg v. Commissioner, T.C. Memo 1997-297">T.C. Memo. 1997-297. Although section 6512(b)(1) bestows jurisdiction on this Court to determine the existence and amount of any overpayment of tax to be refunded for a year before us, section 6512(b)(3)(B) prohibits us in this case from awarding a refund unless we determine that the refunded amount was paid "within the period which would be applicable under section 6511(b)(2) * * * or (d), if on the date of the mailing of the notice of deficiency a claim had been filed (whether or not filed) stating the grounds upon which the Tax Court finds that there is an overpayment". Commissioner v. Lundy, 516 U.S. 235">516 U.S. 235, 241-242, 133 L. Ed. 2d 611">133 L. Ed. 2d 611, 116 S. Ct. 647">116 S. Ct. 647 (1996). The relevant provision of section 6511(b)(2) provides that when a claim for refund is outside the 3-year period of section 6511(a), the amount of the refund may not exceed the amount of tax paid within the 2 years preceding the claim for refund. See sec. 6511(b)(2)(B). Section 6511(a) states that a claim for refund generally must be made within 3 years from the time the return was filed or if no return was filed by the taxpayer, within 2 years from the time the tax was paid.

Petitioner tendered the $ 5,000 to the Commissioner with a Form 4868. The Court of Appeals for the Ninth Circuit, the court to which an appeal in this case lies, has held that a remittance to the Commissioner in such a situation is a payment of estimated tax and not a deposit. See Ott v. United States, 141 F.3d 1306">141 F.3d 1306 (9th Cir. 1998). We hold likewise. See Golsen v. Commissioner, 54 T.C. 742">54 T.C. 742 (1970), affd. 445 F.2d 985">445 F.2d 985 (10th Cir. 1971); see also Baral v. United States, U.S. (2000) (quarterly estimated tax payment was a payment of tax and not a deposit). Because petitioner's payment of the $ 5,000 is considered paid on April 15, 1991, see sec. 6513(b)(2), petitioner is not entitled to receive a refund of any of that amount, see Commissioner v. Lundy, supra.

Decision will be entered stating that there is no deficiency, addition to tax, or accuracy-related penalty due from petitioner and there is no overpayment due to petitioner for 1990.

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Footnotes

• 1. The parties stipulated incorrectly that the notice was issued on May 27, 1997.↩

• 2. The Taxpayer Relief Act of 1997, Pub. L. 105-34, sec. 1282(a), 111 Stat. 788, 1037-1038, amended sec. 6513(b)(3) for years ending after Aug. 5, 1997.↩