
    No. 166-79T.
    November 2, 1979
    Camille and Francine Henry
    
      
      Charles L. Abrahams, attorney of record for plaintiffs.
    
      Gilbert W. Rubloff, with whom was Assistant Attorney General M. Carr Ferguson, for defendant. Theodore D. Peyser and Mary M. Abate, of counsel.
    Before Friedman, Chief Judge, Kunzig and Smith, Judges.
    
   This income tax case comes before the court on defendant’s motion to dismiss plaintiffs’ petition for failure to state a claim upon which relief can be granted. Plaintiffs have not filed an opposition to the motion.

On March 15,1977, plaintiffs belatedly filed their income tax return for the calendar year 1972. The return stated that plaintiffs, because of withholding in excess of their tax liability, had overpaid their income taxes for that year by $1,716 and sought a refund. On May 4, 1977, the Internal Revenue Service denied the refund on the ground the claim was untimely. The taxpayers then brought suit in this court for a refund of the alleged overpayment.

Section 6511(b) of the Internal Revenue Code of 1954 limits refunds to that portion of the tax paid within 3 years prior to the date the claim was filed. Craiglow v. United States, 212 Ct. Cl. 542 (1976); York v. United States, 211 Ct. Cl. 356 (1976); Garvin v. United States, 124 Ct. Cl. 781, 111 F. Supp. 265 (1953). The Code deems all taxes paid during a calendar year to have been paid on April 15 of the following year. I.R.C. § 6513(c)(2); Craiglow, supra, 212 Ct. Cl. at 543.

Thus, the taxes withheld in calendar year 1972 are considered to have been paid on April 15, 1973. Since more than 3 years elapsed between that date and the filing of plaintiffs’ claim on March 15,1977, plaintiffs cannot collect any of the taxes paid in 1972. They therefore have failed to state a claim upon which relief can be granted.

it is therefore ordered that defendant’s motion is granted and plaintiffs’ petition is dismissed.  