Unpublished Disposition, 880 F.2d 416 (9th Cir. 1980)

MEMORANDUM^** 

Cary petitions for review of the tax court's determination that his overpayment of taxes for 1979 may not be credited toward his income tax liability for 1980. We affirm.

For the 1980 tax year, Cary owed $2,246.00 income tax deficiency together with additions to tax under 28 U.S.C. §§ 6653(a) and 6654 totalling $817.00. For the 1979 tax year, Cary made an overpayment of federal income tax amounting to $1,770.00. This overpayment was made through employer withholding of taxes. It was deemed paid on April 15, 1980. 26 U.S.C. § 6513. Under 26 U.S.C. § 6511(a), if no return is filed, taxpayer must file a claim for refund or credit within two years from the time the tax was paid. Cary did not file an income tax return for the years 1979 or 1980. The tax court correctly held that the statute of limitations had run on Cary's ability to claim a refund for his 1979 overpayment of taxes.

The tax court did not err in declining to apply equitable principles to offset Cary's 1980 tax deficiency with his 1979 overpayment. The tax court is a court of limited jurisdiction and lacks general equitable powers. Commissioner v. McCoy, 484 U.S. 3 (1987).

We deny Cary's request for statutory attorney fees. Even if Cary were entitled to such fees, his request would be denied because he has raised this issue for the first time on appeal. See 26 U.S.C. § 7430(c) (4) (B); Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).