MEMORANDUM FINDINGS OF FACT AND OPINION
WILBUR, Judge: Respondent determined a deficiency in petitioner's Federal income tax for the taxable year 1969 in the amount of $ 165.30. Petitioner filed a petition claiming a refund based upon an overpayment of his 1969 taxes. The two issues for our determination are:
(1) Whether respondent properly ignored the amounts withheld from petitioner's wages in payment of his tax liability in computing the deficiency, and (2) whether section 6512(b)(2)1 permits this Court to allow petitioner a refund for overpayments of tax.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.The stipulation of facts, together with the attached exhibits, are incorporated herein by this reference.
Petitioner, David H. Baral, resided in Greenbelt, Maryland at the time he filed the petition in this case.
Upon being informed that respondent had no record of ever having received his 1969 Federal income tax return, petitioner searched his records but was unable to produce a copy of the return. Petitioner then filed a 1969 Federal income tax return on January 29, 1975. Among other deductions, petitioner claimed a $ 150 deduction for legal expenses incurred in connection with the collection of income, and a $ 1,000 casualty loss.
Respondent issued a notice of deficiency for 1969 to petitioner on May 26, 1976. The amount of the deficiency was determined as follows:
| Corrected tax liability | $ 248.80 |
| Tax shown on return or as |
| previously adjusted | 83.50 |
| Statutory deficiency | 165.30 |
This increase in petitioner's tax liability is due to two adjustments made by respondent. Respondent disallowed the entire amount of petitioner's claimed $ 150 legal expense, and disallowed $ 800 of his $ 1,000 casualty loss deduction. Petitioner now concedes these issues, and does not dispute the accuracy of the above amounts as they appear in the notice of deficiency.
In a timely filed petition to this Court, petitioner alleges that the amounts withheld from his wages as income tax payments exceeded his corrected tax liability as determined in the notice of deficiency and, therefore, counterclaims for the difference. Respondent, in an amended answer, admits that petitioner paid $ 371 in taxes in 1969, but asserts that petitioner has not filed a timely claim for this overpayment. Petitioner first filed his 1969 Federal income tax return on January 29, 1975, and this return constitutes his first claim for refund of overpayments of his 1969 Federal income taxes.
OPINION
Petitioner does not contest respondent's determination that his tax liability for 1969 totaled $ 248.80 while the amount shown on the return after adjustments totaled $ 83.50. However, petitioner contends that respondent erred in failing to consider the amounts withheld from his wages in payment of tax (hereinafter referred to as withholdings) in computing the deficiency. Additionally, petitioner contends that his withholdings for 1969 exceeded his tax liability as determined by respondent, and he seeks a return of this overpayment.
Respondent concedes that petitioner's withholdings total $ 371, and that this exceeds his 1969 tax liability by $ 122.20.Nevertheless, respondent argues that the $ 165.30 deficiency was properly computed under section 6211. He also challenges petitioner's demand for a refund of overpayments under section 6512(b)(2), although conceding that the withholdings do constitute payment in full satisfaction of petitioner's tax liability. For the following reasons we must agree with respondent's position on both issues.
Section 6211(a) defines the term "deficiency" as follows:
[The] term "deficiency" means the amount by which the tax imposed * * * exceeds the excess of--
(1) the sum of
(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus
(B) the amounts previously assessed (or collected without assessment) as a deficiency, over--
(2) the amount of rebates, as defined in subsection (b)(2), made. Since no "rebates" (as defined in section 6211(b)(2)) have been made, the statutorily defined "deficiency" in this case is the difference between the Federal income "tax imposed" upon petitioner for 1969 ($ 248.80), and the sum of the amount shown on the return plus "amounts previously assessed (or collected without assessment) as a deficiency" ($ 83.50). While section 31 provides that petitioner's withholdings constitute a credit against his ultimate tax liability, section 6211(b)(1) provides that, in computing the deficiency, "[the] tax imposed * * * and the tax shown on the return shall both be determined * * * without regard to the credit under section 31 * * *." Furthermore these withholdings are not amounts "collected * * * asadeficiency" under section 6211(a)(1)(B). (Emphasis added). Thus, petitioner's deficiency must be determined without regard to his withholdings. Section 301.6211-1(b) and (e), Proced. & Admin. Regs.; Redcay v. Commissioner,12 T.C. 806 (1949); S. Rept. No. 885, 78th Cong., 2d Sess. (1944), 1944 C.B. 858, 887-89. 2 We conclude that respondent properly determined the existence of a $ 165.30 deficiency.
The existence of this deficiency does not, however, preclude our finding of an overpayment for the same year. Bolnick v. Commissioner,44 T.C. 245 (1965); Keefe v. Commissioner,15 T.C. 947 (1950); S. Rep. No. 885, supra, at 889. Section 6512(b)(1) states in pertinent part that, "[except] as provided by paragraph (2) * * * if the Tax Court * * * finds that there is a deficiency but that the taxpayer has made an overpayment of such tax, the Tax Court shall have jurisdiction to determine the amount of such overpayment, and such amount shall, when the decision of the Tax Court has become final, be credited or refunded to the taxpayer." Furthermore, "in determining the amount of an overpayment, albeit for the same year for which we may determine a deficiency, we are to take into account payments made by the taxpayer by withholding." Bolnick v. Commissioner,supra at 258.
However, our authority to determine an overpayment is sharply limited. Section 6511 generally requires that a claim for a refund be filed within three years from the time the return was filed or within two years from the time the tax was paid, whichever date is later. Section 6511(b)(2) generally limits the amount that may be claimed as a credit or refund to the portion of the tax paid within the two or three year period applicable. 3
Section 6512(b)(2)(B) limits our authority to determine refunds and credits to overpayments that would have been refundable to the petitioner under section 6511(b)(2) (amounts paid within the applicable two or three year period) if on the date the notice of deficiency was issued, he had filed a claim for such amount, regardless of whether such a claim actually was filed. See section 301.6512-1(b)(2), Proced. & Admin. Regs. Section 6512(b)(2)(C) imposes similar limits on the amount of refunds and credits we may allow where a timely claim for refund has been filed before the date the deficiency notice is mailed. 4
Petitioner first filed his 1969 Federal income tax return on January 29, 1975, and this return also constituted a refund claim under section 301.6402-3(b), Proced. & Admin. Regs. The statute therefore limits the refund allowable to petitioner herein to those overpayments made within the 3 years immediately preceding the filing of the return which is considered as a claim for refund. Section 6512(b)(2)(C) and section 6511(b)(2)(A). Therefore, petitioner is only entitled to a refund of overpayment that he made after January 29, 1972.
The withholdings involved in this case were all made during calendar year 1969, and are deemed paid on April 15, 1970. 5 Section 6513(b)(1); Section 301.6513-1(b), Proced. & Admin. Regs.; Chemical Bank of New York Trust Co. v. United States,275 F. Supp. 26 (S.D.N.Y. 1967), affd. per curiam 386 F.2d 995 (2d Cir. 1967); York v. United States,211 Ct. Cl. 356 (1976); Mullin v. United States, an unreported case ( E.D. Mo. 1977, 40 A.F.T.R. 2d 77-5932, 77-2U.S.T.C. par. 9689). Thus, we must conclude that petitioner's overpayments are not allowable under section 6511(b)(2).
Nevertheless, petitioner disputes our conclusion by arguing that he filed a timely Federal income tax return for 1969 claiming a refund of his overpayments by April 15, 1970. However he admits that he has no actual memory of filing this tax return and he is unable to locate a copy of his return. His testimony that he did file a timely return is admittedly based on his conclusion that since he usually filed timely returns and does not remember not having filed one for 1969, he probably did file a return. Respondent has no record of having received petitioner's 1969 return prior to 1975. Additionally, we find it unlikely that petitioner, who admitted not having previously received a refund of his 1969 overpayment would fail to inquire with respondent as to the delay in refunding the overpayment if he had in fact filed an earlier return. We must conclude from this evidence that petitioner first filed a 1969 tax return on January 29, 1975.
In summary, we conclude that a $ 165.30 deficiency exists and that no part of petitioner's $ 122.20 overpayment is allowable. We want to make it explicit however that our opinion does not mean that petitioner actually owes the Government $ 165.30. The term deficiency is not equivalent to a liability, 6 and while the statute of limitations for claiming refunds of overpayments for 1969 has expired, there is no comparable provision limiting the period within which withholdings are effective under section 31 as a credit against the current, actual tax liability.7 Respondent has assured this Court that he has no intention of actually collecting any part of the deficiency in view of petitioner's payment of his tax liability through withholding.
Decision will be entered for the respondent.