T.C. Memo. 2008-261



                      UNITED STATES TAX COURT



                RICHARD A. PERKINS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14587-06L.              Filed November 20, 2008.



     Richard A. Perkins, pro se.

     Christopher J. Sheldon, for respondent.



                        MEMORANDUM OPINION


     JACOBS, Judge:   On April 16, 2008, this Court rendered a

Memorandum Opinion, Perkins v. Commissioner, T.C. Memo. 2008-103

(Perkins I), in which we decided that respondent’s proposed

enforcement action to collect by levy assessments for additions

to tax and interest for 1995 and 2000 against petitioner could

not proceed.   We remanded the matter to respondent’s Appeals
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Office for reconsideration as to if and when petitioner was

financially disabled for purposes of section 6511(h).1

                             Background

     Petitioner resided in Arizona when he filed his petition.

     Petitioner and his wife belatedly filed joint returns for

1995 and 2000 on which they reported tax of $4,219 and $5,892,

respectively.   Respondent assessed additions to tax and interest

with respect to the tax shown on each return.

     Petitioner filed a joint return for 1999 on February 26,

2004.    That return showed, and respondent does not dispute, that

petitioner overpaid his 1999 tax liability by $1,922.    All of

petitioner’s 1999 tax payments were made through withholding

credits.

     Petitioner argued that he should be permitted to apply the

1999 overpayment to amounts owed for 1995 and 2000.   The central

dispute in Perkins I, as well as herein, was whether petitioner

timely filed a claim for a refund of his 1999 Federal income tax

overpayment.    Because petitioner filed that claim on February 26,

2004, it would generally be barred by the section 6511 period of

limitations.    Petitioner claimed the statute was tolled, and the

section 6511 period of limitations did not bar his claim for




     1
      All section references are to the Internal Revenue Code as
amended.
                               - 3 -

refund of his 1999 overpayment, because he was “financially

disabled” within the meaning of section 6511(h).

     In Perkins I we found that respondent’s Appeals settlement

officer misapprehended the applicable law in considering whether

petitioner was financially disabled, and thus we remanded the

case to respondent’s Appeals Office for reconsideration.    The

remand necessitated our preventing respondent from proceeding

with his proposed enforced collection action until respondent’s

Appeals settlement officer could reconsider petitioner’s claim

that he was financially disabled.

     Pursuant to our order to remand, on July 18, 2008, one of

respondent’s Appeals settlement officers met with petitioner to

discuss the issue of tolling the statute of limitations pursuant

to section 6511(h).   She provided petitioner with the applicable

guidelines, found in Rev. Proc. 99-21, 1999-1 C.B. 960, to be

used in deciding whether a taxpayer is financially disabled.

Petitioner agreed to attempt to obtain the documentation required

under the guidelines to substantiate his financial disability

claim.   When respondent did not receive the relevant

documentation, respondent issued a supplemental notice of

determination on September 26, 2008, in which respondent

concluded that petitioner was not financially disabled within the

meaning of section 6511(h).   Consequently, respondent denied
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petitioner’s claim to have his overpayment for 1999 applied to

offset his tax liability for 1995 and 2000.

                           Discussion

     In Perkins I we described the statutory framework regarding

enforced collection activity by the Secretary.   Petitioner’s sole

argument as to the procedures that have been employed thus far is

that respondent’s proposed levy should not proceed because

petitioner’s 1999 overpayment is available to offset his 1995 and

2000 tax liabilities.

     As we noted in Perkins I:

          As directed by section 6511(h), the Commissioner has
     prescribed guidelines that are to be used in deciding
     whether a taxpayer is financially disabled. According to
     Rev. Proc. 99-21, sec. 4, 1999-1 C.B. 960, 960, the taxpayer
     must provide a physician’s written statement that includes:
     (1) The name and description of the taxpayer’s physical or
     mental impairment, (2) the physician’s medical opinion that
     the impairment prevented the taxpayer from managing his
     financial affairs, (3) the physician’s medical opinion that
     the impairment was or can be expected to result in death, or
     lasted or can be expected to last for 12 months or more, and
     (4) the specific time period during which the taxpayer was
     prevented by such physical or mental impairment from
     managing the taxpayer’s financial affairs.15 The
     physician’s statements must be submitted with the credit or
     refund claim.

           Additionally, the taxpayer must certify than no
     person, including the taxpayer’s spouse, was authorized to
     act on behalf of the taxpayer in financial matters during
     the relevant period. [See sec. 6511(h)(2)(B).]

The criteria for an individual’s financial disability, as set

forth in Rev. Proc. 

, are drawn directly from the

text of section 6511(h)(2)(A), and that statute mandates that
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proof of the existence of an individual’s financial impairment be

furnished in the form or manner as the Secretary may require.

     Following remand of this case to respondent’s Appeals

Office, petitioner attempted to obtain a physician’s written

statement as described in Rev. Proc. 

.    To this end,

petitioner wrote to a psychiatrist at Saint Vincent Behavioral

Health Clinic (Saint Vincent’s) who had treated petitioner for

mental health difficulties, asking the psychiatrist to provide

the required statement.   In a subsequent telephone conversation

with petitioner, the psychiatrist stated, according to

petitioner, that the psychiatrist’s “diagnosis and treatment of

[petitioner] was so long ago he would have to rely on what was

written in [petitioner’s] medical record, which should be

sufficient, and would not be able to add anything.”

     Petitioner’s medical record, including detailed notes

compiled by a therapist and a psychiatrist at Saint Vincent’s,

was submitted at the trial of this case.    Respondent objected to

the admission of the notes into evidence as well as petitioner’s

testimony concerning his medical history.   We need not decide

whether the evidence is admissible, because we find that it is

insufficient to establish that petitioner was financially

disabled within the meaning of section 6511(h).

     Nowhere in petitioner’s medical record is there any

statement by a physician to the effect that petitioner was
                                 - 6 -

incapable of managing his financial affairs, or that he suffered

from an impairment that could be expected to result in death (or

had lasted or could be expected to last for 12 months or more),

or that any specific period was associated with such impairment.

On the contrary, petitioner testified that from 2000 through 2003

he earned significant amounts of income working for the same

employer and during those years he paid bills, entered into lease

agreements together with his wife, and was “predominantly in

charge of the household finances.”

     Petitioner has not shown that he was financially disabled

for purposes of section 6511(h).    Consequently, the section 6511

period of limitations with respect to petitioner’s refund claim

for tax year 1999 was not suspended, and the period of

limitations with respect to petitioner’s refund claim expired.

     Because petitioner’s 1999 overpayment is not available to

offset his 1995 and 2000 tax liabilities, respondent may proceed

to collect by levy additions to tax and interest petitioner owes

for 1995 and 2000.

     To reflect the foregoing,


                                           Decision will be entered

                                      for respondent.