
    No. 127-76.
    November 12, 1976
    Richard C. and Bonnie M. Craiglow
    
      Donald H. Snell, attorney of record for plaintiffs; Kendrick, Kendrick <& Bradley, of counsel.
    
      Evelyn Leopold, with whom was Assistant Attorney General Scott P. Crompton, for defendant. Theodore D. Peyser, of counsel.
    
      Before SkeltoN, Judge, Presiding, Nichols and Kashiwa, Judges.,
    
   “This case is before the court on defendant’s motion to dismiss plaintiffs’ petition, and upon consideration thereof, together with the briefs of the parties, and without oral argument, the court concludes that the motion of defendant should be granted.

“The facts show that taxpayers filed, for the first time, their individual income tax returns for the calendar years 1970 and 1971 on June 17,1975. The taxpayers’ withholding taxes during those years exceeded their computed income tax liability, resulting in overpayments totaling $8,605. In their returns for 1970 and 1971, taxpayers requested that the overpayment in each year be credited to their tax liability for the succeeding tax year. The Internal Bevenue Service refused to allow taxpayers’ Claims for credit and this suit followed.

“The applicable portions of the Internal Revenue Code are Sections 6511(b)(2) and 6513(b)(1). Section 6511(b) (2)' limits the amount of allowable refund or credit to the portion of the tax paid three years prior to the date the claim is filed. The parties agree on the applicability of Section 6511(b) (2).-

. “The only point upon which the taxpayers and the Government disagree is the date the tax is deemed to have been paid. On this point, the language of Section 6513(d) (1) of the Code is clearly applicable. That section states in unequivocal terms that:

(1) Any tax actually deducted and withheld at the source during any calendar year * * * shall, in respect to the recipient of the income, be deemed to have been paid by him on the 15th day of the fourth month following the close of his taxable year * * *.

According to this section, the taxes in question here are deemed paid on April 15 of the year following the close of the taxable years. Thus, the taxes withheld for the calendar year 1971 are deemed paid on April 15,1972. As stated above, Section 6511(b)(2) limits the amount of allowable refund or credit to the portion of the tax paid during three years prior to the filing of the claim, plus the period of any extensions of time for filing the return. Since there were no extensions of time, taxpayers’ refund or credit is limited to the amount of tax paid during the three years prior to June 17, 1975, the date the claims were filed for 1970 and 1971. Since the taxpayers’ income taxes for 1970 and 1971 were deemed to have been paid on April 15,1971, and April 15,1972, respectively, no amounts were paid during the limitation period and, therefore, the allowable credit or refund is zero. See Domtar Newsprint Sales Ltd. v. United States, 193 Ct. Cl. 505, 435 F. 2d 563 (1970).

“For these reasons, taxpayers have failed to state a claim upon which relief may be granted. Accordingly, defendant’s motion to dismiss is granted and plaintiffs’ petition is dismissed.”  