116 T.C. No. 5



                UNITED STATES TAX COURT



            EUGENE M. LANDRY, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 18558-99L.                Filed January 30, 2001.



     P’s Federal income tax returns for 1989 through
1997 were filed consistently late. Each return
reflected an overpayment, which P elected to apply to a
subsequent year’s liability. Held: The Court has
jurisdiction because the underlying tax liability
relates to Federal income tax, regardless of whether a
deficiency was determined. Held, further, overpayments
first claimed on returns filed more than 3 years late
are barred, and R may proceed with collection of
balances due as determined in a Notice of Determination
Concerning Collection Action(s).



Eugene M. Landry, pro se.

John D. Faucher, for respondent.
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     COHEN, Judge:    Respondent sent to petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 with respect to petitioner’s Federal income taxes for

1992 and 1996.   Petitioner contests the levy on the ground that

the amounts in issue were paid by excess taxes withheld in

earlier years.   Respondent declined to apply the excess

withholding from years for which returns were filed more than

3 years late.    Unless otherwise indicated, all section references

are to the Internal Revenue Code in effect for the years in

issue.

                          FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated by this reference.    Petitioner resided in

Spring, Texas, at the time that he filed his petition.     Prior to

and during the years in issue, petitioner was employed as a staff

financial representative for Royal Dutch Shell Group.    He is

educated as an accountant and prepared and filed his own tax

returns.

     For all years from 1989 through 1998, petitioner filed joint

tax returns with his wife, Deborah B. Landry.    Petitioner’s 1989

return was filed on April 15, 1993.     His returns for 1990, 1991,

and 1992 were filed on or about April 15, 1997.    His returns for

1993, 1994, 1995, and 1996 were filed no earlier than June 1997.

Petitioner’s return for 1997 was filed in April 1999.
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     When he filed his returns as set forth above, petitioner

indicated that the overpayments claimed from withholding or

carried over estimated tax from prior years should be applied to

the estimated tax for the following year.   The 1989 joint income

tax return reported an overpayment of $2,329.   Petitioner elected

to apply this overpayment to his estimated income tax for 1990.

The 1990 joint income tax return reported an overpayment of

$3,074, including $2,329 carried over from 1989.    Petitioner

elected to apply this overpayment to his estimated income tax for

1991.   The 1991 joint income tax return reported an overpayment

of $3,568, including $3,074 carried over from 1990.    Petitioner

elected on his 1991 joint income tax return to apply this

overpayment to his estimated income tax for 1992.    The 1992 joint

income tax return reported an overpayment of $544, including

$3,568 carried over from 1991.    Petitioner elected to apply this

overpayment to his estimated income tax for the 1993 tax year.

The 1993 joint income tax return reported an overpayment of $816,

including $544 carried over from 1992.   Petitioner elected to

apply this overpayment to his estimated income tax for 1994.     The

1994 joint income tax return reported an overpayment of $1,491,

including $816 carried over from 1993.   Petitioner elected to

apply this overpayment to his estimated income tax for 1995.     The

1995 joint income tax return reported an overpayment of $1,761,

including $1,491 carried over from 1994.    Petitioner elected to
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apply this overpayment to his estimated income tax for 1996.    The

1996 joint income tax return reported an overpayment of $94,

including $1,761 carried over from 1995.    Petitioner elected to

apply this overpayment to his estimated income tax for the 1997

tax year.    The 1997 joint income tax return reported an

overpayment of $4,203, including $94 carried over from 1996 and

payments of $15,000 in estimated taxes made during 1997.

Petitioner elected to apply this overpayment to his estimated

income tax for 1998.

     Respondent applied the overpayments as directed by

petitioner except in instances where the overpayments claimed by

petitioner as credits could not be applied in full against

petitioner’s liability because part of the carried over amounts

had been deemed paid more than 3 years before the return was

filed claiming a credit for that amount.

                               OPINION

     The petition in this case was filed in response to a notice

of determination sent after a hearing under section 6330 was

conducted.    Petitioner raised at the hearing his contention that

the taxes that were the subject of proposed collection activity

had been paid.    The record is unclear as to whether any

deficiency was determined against petitioner by respondent.

Nonetheless, because the underlying tax liability relates to

Federal income taxes, over which we have jurisdiction, we hold
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that we have jurisdiction in this proceeding.    See sec.

6330(d)(1).

     The notice of determination set forth in detail the

application of the various amounts paid by petitioner and those

that were not credited to petitioner’s account because of late

filing of his returns.   No other issues have been raised.

     Because the validity of the underlying tax liability, i.e.,

the amount unpaid after application of credits to which

petitioner is entitled, is properly at issue, we review

respondent’s determination de novo.     See Goza v. Commissioner,

, 181-182 (2000).

     Petitioner does not dispute that his returns for 1990, 1991,

1992, and 1993 were filed more than 3 years after they were due.

He contends, however, that it is unjust for the Internal Revenue

Service to fail to apply all of his overpayments to his

outstanding tax liabilities because he consistently paid his

taxes early by not claiming refunds of excess withholding until

the time that he belatedly filed his returns.    Although he refers

in his testimony to his mother’s death in March 1992 and to his

father’s death in April 1993, he offers no bona fide excuse for

his failure to file timely returns starting with the return for

1989 due in 1990.   It appears that sometime prior to April 15,

1990, he made a deliberate decision not to file his returns until

“the three-year window of time” for claiming refunds or credits
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was about to pass.   When that time came, however, family and

employment obligations allegedly interfered with his plan.     In

other words, he knowingly failed to comply with his annual

obligation to file a tax return, and he now seeks relief because

he has lost refunds or credits to which he otherwise was

entitled.

     We are not impressed with petitioner’s “equitable” argument.

Even if we were, however, we are bound by the strict terms of the

statutory provisions limiting refunds or credits for overpayments

to those properly claimed within 3 years of the date paid.     See

sec. 6511(b); United States v. Brockamp, 

, 352-354

(1997).   Payments made by withholding from petitioner’s wages are

deemed paid on the 15th day of the 4th month following the close

of the tax year.   See sec. 6513(b)(1).   To the extent that

overpayments were designated as estimated tax payments for a

subsequent year, they were deemed made on the last day for filing

the return.   See sec. 6513(b)(2).   Application of the credits in

dispute was clearly barred.

     As a matter of law, petitioner is not entitled to credit for

an amount paid or deemed paid more than 3 years before a return

claiming a credit of that amount was filed.    Respondent correctly

determined that collection efforts should proceed.
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To reflect the foregoing,

                                         Decision will be entered

                                    for respondent.