The opinion of the court was delivered by: DIAMOND
Presently before this court is defendant's motion for summary judgment based upon the plaintiffs' alleged improper filing of claims for refund and for abatement of interest and penalties on the plaintiffs' federal income taxes. For the reasons set forth below, the motion will be granted.
The pro se plaintiffs in this case seek a refund for overpayments of their federal income taxes for 1972 and 1973. The plaintiffs also request the abatement of interest and penalties for taxable years 1974, 1975 and 1980.
The plaintiffs filed their 1972, 1973, 1974 and 1975 federal income tax returns on September 29, 1980. In 1972 and 1973, the plaintiffs' tax payments consisted of taxes withheld from plaintiff Robert Graham's pay. Plaintiffs now seek a refund of $408.97 for 1972 and $1,200.65 for 1973 on the theory that the withheld taxes in those years exceeded their tax liability.
In 1981, the Internal Revenue Service denied the plaintiffs' claim for refunds for taxable years 1972 and 1973. It alleged that the law does not provide for refunding or crediting tax that was paid more than three years before the filing of the claim.
Pursuant to 26 U.S.C. § 6511(a), any claim for credit or refund of an overpayment of any tax must be filed within three years from the time the return was filed or two years from the time the tax was paid, whichever of such expires later. Furthermore, 26 U.S.C. § 6511(b)(1) provides that no claim for credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) unless a claim for credit or refund is filed by the taxpayer within such period. Finally, 26 U.S.C. § 6511(b)(2) limits those claims for refunds to those taxes paid within three years before the claim is filed. Section 6511(b)(2) provides in pertinent part:
If the claim was filed by the taxpayer during the 3-year period prescribed in subsection (a), the amount of the credit or refund shall not exceed the portion of the tax paid within the period immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the returns.
The consequence of the above provisions is to prohibit any refund of taxes that were paid more than three years before the claim was filed. McLeod II v. United States, 229 Ct. Cl. 810, 82-1 USTC para. 9177 (Ct. Cl. 1982). In the instant case, the amount of credit or refund which can be made is limited to taxes paid after September 29, 1977, because as indicated above, the plaintiffs did not file their federal income tax returns for 1972 and 1973 until September 29, 1980. In addition, pursuant to 26 U.S.C. § 6513(b), the taxes withheld in 1972 and 1973 are deemed to have been paid on April 15, 1973, and 1974, respectively. Consequently, because no amounts were paid during the limitation period, the allowable credit or refund is zero. Craiglow v. United States, 212 Ct. Cl. 542, 76-2 USTC para. 9779 (Ct. Cl. 1976).
The plaintiffs may be contending that those statements by Service representatives constituted an extension of time for filing the return. The Treasury regulation, promulgated pursuant to the code provision permitting such extensions, I.R.C. § 6081, however, requires that an application for extension must be filed "in writing" with the Internal Revenue Service officer with whom the filing is to be made and on or before the due date of such filing. Treas. Reg. § 1.6081-1(b)(1).
McLeod II, 82-1 USTC at para. 9177.
The plaintiffs in the instant case have not satisfied the above-mentioned provisions. Therefore, they are precluded from alleging that the statements by the Internal Revenue Service personnel constituted an extension of time for filing a claim. In addition, as the court stated in McLeod II, "such extensions of time normally are granted to a fixed date and do not permit the ...