
    No. 29-76.
    October 21, 1976
    Philip H. and Frances V. York
    
      Walter L. Abbey, attorney of record for plaintiff. Kendrick, Kendrick & Bradley, of counsel.
    
      Joan 8. Pate, with whom was Assistant Attorney General Scott P. Orampton, for defendant. Theodore D. Peyser, and Donald H. Olson, of counsel.
   Taxes; income tax; limitations on credit or refund. — On October 21,1976 the court entered the following order.

Before SkeltoN, Judge, Presiding, Nichols and Kashiwa, Judges.

“This tax case is before us on defendant’s motion to dismiss. On March 10, 1975, plaintiffs filed income returns for their calendar years 1963-69. For 1963-66, they show that withholding exceeded their tax liability for those years, which they now seek to recover by credit against other tax liability. Defendant says the limitations on credit or refund in Section 6511 of the Internal Bevenue Code, 26 U.S.C. § 6511, bar this claim, particularly the provision of § 6511 (b) that the credit or refund shall not exceed the portion of the tax paid within three years of filing the claim with other provisions not here relevant. The dates the several returns were due are deemed the dates of paying the amounts withheld in the corresponding periods, and such dates in no instance are within the 3-year period. Garvin v. United States, 124 Ct. Cl. 781, 111 F. Supp. 265 (1953); Chemical Bank v. United States, 275 F. Supp. 26 (S.D.N.Y.), affirmed 386 F. 2d 995 (2d Cir. 1967). Plaintiffs’ argument that they did not pay their 1963-66 taxes until they filed returns is rejected as contrary to the facts and the law.

“Accordingly, upon the motion and briefs of the parties, but without oral argument, it is ordered, that the petition is dismissed.”  