                         T.C. Memo. 2010-118



                     UNITED STATES TAX COURT



            JOANNA DEL VALLE VILLAFANE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 26856-08.              Filed June 1, 2010.



     Joanna Del Valle Villafane, pro se.

     Blaine Holiday, for respondent.



                         MEMORANDUM OPINION


     GUSTAFSON, Judge:   The Internal Revenue Service (IRS) issued

to petitioner Joanna Del Valle Villafane a statutory notice of

deficiency pursuant to section 62121 for the year 2006, showing



     1
      Unless otherwise indicated, all citations of sections refer
to the Internal Revenue Code of 1986 (26 U.S.C.), as amended, and
all citations of Rules refer to the Tax Court Rules of Practice
and Procedure.
                                - 2 -

the IRS’s determination of an $850 deficiency in income tax.

Ms. Villafane brought this case pursuant to section 6213(a),

asking this Court to redetermine that deficiency, and in his

amended answer respondent asserted a deficiency in a greater

amount, $2,326.    The case is currently before the Court on

respondent’s motion for summary judgment.    After respondent’s

concession of the principal issue in the notice of deficiency,2

the issues for decision are whether Ms. Villafane is entitled to

medical expense deductions and education credits, and whether the

tax refund she received is taken into account in calculating her

deficiency.    For the reasons explained below, we will grant

respondent’s motion.

                             Background

     The following facts are based on Ms. Villafane’s petition,

her testimony at a partial trial held September 14, 2009, and

documents that she provided to respondent and that were attached

to a status report filed January 25, 2010.    At the time she filed

her petition, Ms. Villafane resided in Minnesota.

Ms. Villafane’s 2006 income and expenses

     In 2006 Ms. Villafane earned wages of $20,337 from two

employers.    From those wages the employers withheld a total of

$2,296 in income tax.    The employers issued Forms W-2, “Wage and


     2
      Respondent concedes that Ms. Villafane did not receive
$6,139 in discharge of indebtedness income from the forgiveness
of credit card debt.
                              - 3 -

Tax Statement”, showing the amounts of wages and withholding.3

In 2006 Ms. Villafane did not incur medical expenses or

educational expenses, and she has never alleged that she did.

Ms. Villafane’s 2006 return

     Ms. Villafane hired a tax return preparer, to whom she gave

the Forms W-2 from her employer.   The preparer informed

Ms. Villafane that she would receive a refund of $2,015.05.    The

preparer had Ms. Villafane sign a paper authorizing the preparer

to direct the IRS to pay the refund directly into the preparer’s

account and authorizing the preparer to pay Ms. Villfane her

refund by a check from the preparer.   The preparer issued a bank

check to Ms. Villafane in the amount of $2,015.05, as she had

stated she would do, and the check is dated April 15, 2007 (which

was a Sunday).

     The electronic signature date on Ms. Villafane’s return is

April 16, 2007 (which was a Monday).   Ms. Villafane never saw any

copy of the return that was filed electronically on her behalf.



     3
      Manpower of Texas Limited Partnership issued to
Ms. Villafane a Form W-2 for 2006 showing wages of $12,309.38 and
Federal income taxes withheld of $1,468.99. Staples the Office
Superstore issued to Ms. Villafane a Form W-2 for 2006 showing
wages of $8,028.48 and Federal income taxes withheld of $827.19.
In total, Ms. Villafane had wages of $20,337.86 and Federal
income tax withheld of $2,296.18. However, Ms. Villafane rounded
her wages down to $20,337 on her return, and respondent appears
to have rounded down her wages and income tax withheld to the
nearest dollar in his filings with this Court. For simplicity,
we adopt the parties’ convention of rounding down Ms. Villafane’s
wages and income tax withheld to the nearest dollar.
                                 - 4 -

The return claimed deductions for $5,017 in medical expenses,

claimed credits for $1,156 in education expenses, and reported a

zero tax liability.    Ms. Villafane never incurred those expenses

and never authorized the claiming of those deductions and

credits.    The return also overstated Ms. Villafane’s withholding

credits by $200, claiming $2,496 instead of the $2,296 that had

actually been withheld.    Ms. Villafane was not aware of these

errors.    The return claimed a $162 credit for telephone excise

tax paid and claimed a refund of $2,658 (consisting of the

claimed withholding credits of $2,496 plus the telephone excise

tax credit of $162).     The return directed that the IRS send the

refund to an account owned by the return preparer.    The parties

assume that the IRS sent to the preparer’s account a refund in

the claimed amount of $2,658, but the record does not show the

amount of the refund.4    In view of the preparer’s prior issuance

of a $2,015.05 check to Ms. Villafane, the preparer thus retained

$642.95 of the refund.

The notice of deficiency

     On August 4, 2008, the IRS issued to Ms. Villafane a notice

of deficiency for the year 2006.    The IRS had received a credit



     4
      For the reasons stated below in part II.B, a finding as to
the amount of the refund is not necessary to the resolution of
the deficiency in this case, and we adopt the parties’
assumption. Nonetheless, it would have been useful to know, and
not to have had to assume, the facts about the IRS’s receipt and
processing of Ms. Villafane’s return.
                                - 5 -

card company’s report of discharge of indebtedness income, which

had not been reported on Ms. Villafane’s return.     The notice of

deficiency increased Ms. Villafane’s income by the amount of the

discharge and also made corresponding computational adjustments

that reduced, in small part, her (improper) medical expense

deductions and education credits.    (Respondent now concedes the

discharge-of-indebtedness issue.)    On the basis of those

adjustments, the notice determined a deficiency of $850.     The

notice also corrected her overstated withholding credit, figured

interest due on the underpayment, and advised Ms. Villafane that

she owed a total of $1,142 for 2006.

Ms. Villafane’s petition

     Ms. Villafane was confused by the notice of deficiency,

because she knew she had incurred no medical expenses or

educational expenses in 2006.    She therefore timely filed a

petition in this Court.    The petition explained:

     I trusted that the tax preparer was entering in my tax
     return all the correct info provided; instead I became
     a victim of what many people encounter many times.

     I am just requesting that this information be
     investigated. I believe the wrong information was
     provided by the tax preparer.

The petition stated that her withholding had been as the IRS

determined it (and not as claimed on her return).    The petition

affirmatively stated as to the medical expenses that “I didn’t

provide this information to my tax preparer.    I haven’t had any
                               - 6 -

Medical deduction.   This was included without my knowledge and it

was unauthorized.”   As to the education credits, the petition

states:   “I haven’t gone to school since 1991, so this amount was

entered w/o my knowledge and unauthorized.”    That is, the

petition disclosed that the medical expense deductions and

education credits should have been disallowed in their entirety,

and not only in part as on the notice of deficiency.

Proceedings in Tax Court

     In view of the disclosures in the petition, respondent

asserted, in an amendment to his answer, a deficiency greater

than was shown on the notice of deficiency, i.e., $2,3265 (as

compared to $850).

     When this case was called from the calendar in St. Paul,

Minnesota, on September 14, 2009, the parties had not yet agreed

on a stipulation of facts pursuant to Rule 91.    A partial trial

was held at which Ms. Villafane testified.    Her testimony was in

accord with the foregoing account.     The Court observed that the

case had not yet been adequately developed and directed the




     5
      The computation attached to the amendment to respondent’s
answer shows (on line 14) a deficiency of $2,326. The text of
that amendment asserts an increase of $1,638 in the deficiency
determined in the notice ($850), which would total $2,488.
However, that larger amount is the “Balance due” from line 16,
which includes “Adjustments to Prepayment Credits” (from
line 15), which are not a part of the deficiency computation.
See part II.B.2.b below.
                               - 7 -

parties to attempt to stipulate or settle some or all of the

issues.

     After attempts at cooperating with Ms. Villafane to

stipulate or settle, respondent conceded the discharge-of-

indebtedness issue and filed a motion for summary judgment.

Despite an order from the Court that she respond, Ms. Villafane

has not done so.   The case can now be resolved.

                            Discussion

I.   Summary judgment standards

     Where the pertinent facts are not in dispute, a party may

move for summary judgment to expedite the litigation and avoid an

unnecessary and potentially expensive trial.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Rule 121 provides for

summary judgment in terms equivalent to Rule 56 of the Federal

Rules of Civil Procedure.   Summary judgment may be granted where

there is no genuine issue as to any material fact and a decision

may be rendered as a matter of law.    Rule 121(a) and (b); see

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753,

754 (1988).   Ms. Villafane did not raise any genuine issue of

material fact, and the case can be resolved under Rule 121.
                                - 8 -

II.   Redetermination of Ms. Villafane’s deficiency

      A.    Medical expense deductions and education credit

      Ms. Villafane’s return, as prepared by the return preparer,

claimed medical expense deductions under section 213 that

Ms. Villafane did not authorize and that she concedes were

improper.    The disallowance of those deductions (and the

allowance instead of the standard deduction) as is reflected in

the amendment to respondent’s answer must therefore be sustained.

Likewise, Ms. Villafane’s return claimed education credits under

section 25A that she concedes were improper, and respondent’s

proposed disallowance of those credits must be sustained.

These adjustments will be reflected in our redetermination of

Ms. Villafane’s deficiency.

      B.    Ms. Villafane’s refund

      The matter of Ms. Villafane’s refund ($2,658 paid to the

preparer, who paid $2,015.05 to Ms. Villafane) has been a subject

of discussion between the Court and the parties.    For that

reason, we show here that it does not affect the outcome of this

deficiency case.

            1.   A non-rebate refund claimed on an original return

      In a deficiency case under section 6213(a), this Court

redetermines a deficiency.    In some circumstances, that

redetermination will take account of a refund that has been made

to the taxpayer, and that refund will make the subsequent
                                    - 9 -

deficiency greater; but this is not such a circumstance.         The

term “deficiency” is defined in section 6211(a) to mean--

     the amount by which the tax imposed by subtitle A * * *
     exceeds the excess of--

                 (1)   the sum of

                      (A) the amount shown as the tax by the
                 taxpayer upon his return, if a return was
                 made by the taxpayer and an amount was shown
                 as the tax by the taxpayer thereon, plus

                      (B) the amounts previously assessed (or
                 collected without assessment) as a
                 deficiency, over--

                 (2) the amount of rebates, as defined in
            subsection (b)(2), made.

A “rebate” will therefore increase the amount of a deficiency.

The term “rebate” is defined in section 6211(b)(2) to mean “so

much of an abatement, credit, refund, or other payment, as was

made on the ground that the tax imposed by subtitle A * * * was

less than the excess of the amount specified in subsection (a)(1)

over the rebates previously made.”          That is, “a rebate refund is

issued on the basis of a substantive recalculation of the tax

owed.”    Interlake Corp. v. Commissioner, 112 T.C. 103, 110

(1999).    There is ordinarily no such “substantive recalculation”

of the liability when the IRS issues a refund of the amount

claimed as an overpayment on a taxpayer’s original return.         Thus,

section 6211(b)(1) provides that “[t]he tax imposed by subtitle A

and the tax shown on the return shall both be determined * * *

without regard to the credit under section 31” (i.e., the credit
                             - 10 -

for income tax withheld from wages);6 and the regulations under

section 6211 provide:

     For example, assume that the amount of income tax shown
     by the taxpayer upon his return for the taxable year is
     $600 and the amount claimed as a credit under section
     31 for income tax withheld at the source is $900. If
     the district director determines that the tax imposed
     by subtitle A is $600 and makes a refund of $300, no
     part of such refund constitutes a “rebate” since the
     refund is not made on the ground that the tax imposed
     by subtitle A is less than the tax shown on the return.
     * * *

26 C.F.R. sec. 301.6211-1(f), Proced. & Admin. Regs.   A refund of

the amount of payroll withholding that is claimed as an

overpayment on an original return is therefore generally not a

“rebate” and does not enter into the calculation of a deficiency.

Of course, the IRS “is not prevented from later determining a

deficiency in tax for such year because of the prior refund”, see

Terry v. Commissioner, 91 T.C. 85, 87 (1988), but that deficiency

will be calculated by reference to the tax liability shown on the

return and will not be increased by the amount of the (non-

rebate) refund previously claimed and allowed.




     6
      See Jordan v. Commissioner, T.C. Memo. 2006-95 n.9 (“by
definition a deficiency is determined without regard to the
sec. 31 credit for tax withheld on wages”), affd. 226 Fed. Appx.
15 (1st Cir. 2007).
                                 - 11 -

          2.     Refunds of excessive credits

                  a.    Excessive withholding credit

     A portion of the refund claimed on Ms. Villafane’s return

and paid by the IRS resulted from a $200 overstatement of

Ms. Villafane’s payroll withholding credits claimed under

section 31(a)(1).      The IRS took that excess into account in its

recomputation of Ms. Villafane’s liability for 2006 that it sent

with the notice of deficiency, and in that recomputation the

proposed liability was increased accordingly.     However, an

alleged excessive withholding credit does “not fall within the

definition of a deficiency under section 6211(a),” Pen Coal Corp.

v. Commissioner, 107 T.C. 249, 256 (1996); and the excessive

credit did not figure into the deficiency per se (amounting to

$850) as determined in the notice of deficiency.

                  b.    Telephone excise tax refund

     The increase in the deficiency that respondent asserted in

the amendment to his answer would reclaim $162 in telephone

excise tax previously refunded to Ms. Villafane--a refund that

appears on income tax returns only for 2006.     Section 4251

imposes an excise tax on “communications services”, and in 2006

the Government conceded the non-taxability of most long-distance

telephone service and undertook to refund the tax to 160 million

taxpayers.     See Notice 2006-50, 2006-1 C.B. 1141.   The means

chosen for making the telephone excise tax refund (TETR) was the
                                - 12 -

income tax return.    For 2006 the Form 1040, “U.S. Individual

Income Tax Return”, included among the “Payments” (lines 64-72) a

line 71 (“Credit for federal telephone excise tax paid”) on which

a taxpayer claimed the refund as if it were a payment of tax,

i.e., along with witholding credits and the like.7

     Ms. Villafane’s income tax return for 2006 claimed a credit

of $162 for telephone excise tax allegedly overpaid, and the

refund that she was allowed included that amount.       The IRS’s

amended answer would take the TETR back from her by increasing

her deficiency by the same amount.       In so doing respondent in

effect asked the Tax Court to determine that Ms. Villafane’s TETR

was excessive.

     However, an allegedly excessive telephone excise tax credit

does not properly enter into the computation of a deficiency

under section 6211(a), and we therefore do not have jurisdiction

to determine it.     The TETR was (properly) characterized on Form

1040 for 2006 as a payment; and as section 301.6211-1(b), Proced.

& Admin. Regs., states, “Payments on account of estimated income

tax, like other payments of tax by the taxpayer, shall likewise




     7
      Form 1040-A, “U.S. Individual Income Tax Return”, had an
equivalent line 42; and Form 1040EZ, “Income Tax Return for
Single and Joint Filers With No Dependents”, had an equivalent
line 9. For persons who did not owe any income tax and would not
otherwise file a return, the IRS promulgated a special Form
1040EZ-T, “Request for Refund of Federal Telephone Excise Tax”,
on which a person would claim only the TETR.)
                              - 13 -

be disregarded in the determination of a deficiency.”    The

Internal Revenue Manual (IRM) states:

     The TETR amount is considered a Non-Rebate refund, and
     must be worked pre-refund. Exam will not look at cases
     once the TETR amount has been refunded.

IRM pt. 4.19.15.37(9) (Dec. 12, 2008).    As a “Non-Rebate refund”

not subject to any exception (see, e.g., sec. 6211(b)(4)), the

TETR falls outside the “rebates” that affect the deficiency

calculation under section 6211(a)(2).

     We therefore need not decide any issues arising from

Ms. Villafane’s refund made in response to the claim in her

return.   We decide only the deficiency in her income tax.

     To reflect the foregoing,


                                      An appropriate order and

                                 decision will be entered.
