                         T.C. Memo. 2004-170



                       UNITED STATES TAX COURT



                CYNTHIA J. HALL, Petitioner, AND
                  THOMAS E. HALL, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7459-02.             Filed July 20, 2004.


     Cynthia J. Hall, pro se.

     Thomas E. Hall, pro se.

     Randall E. Heath, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion for summary judgment.      The issue for decision

is whether respondent’s application of petitioner’s overpayment

relating to 1998 as a credit against petitioner’s 1995 tax
                               - 2 -

liability bars granting petitioner’s request for relief from

joint and several liability, pursuant to section 6015,1 for 1995.

Background

     On or about April 15, 1996, petitioner and her husband,

Thomas E. Hall, requested an extension to file their joint

Federal income tax return for 1995.    On this same date,

respondent applied a withholding credit of $19,079 to their

account for 1995.

     On or about October 27, 1997, petitioner and her husband

filed a joint return for 1995 (joint return).    They reported a

tax due of $20,949.   Accordingly, after application of the

$19,079 withholding credit, there was a balance due of $1,870.

     On December 8, 1997, respondent assessed the tax reported on

the joint return, a “late filing penalty” of $420.75, a “failure

to pay tax penalty” of $187, and “interest assessed” of $347.14

(1995 tax liability).

     On or about April 15, 1999, petitioner filed a return for

1998 claiming a $54 refund due (1998 overpayment).    That same

date, respondent applied petitioner’s 1998 overpayment to the

outstanding balance on the 1995 tax liability.




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code.
                                 - 3 -

     On June 7, 1999, respondent mailed petitioner a letter

notifying her that her 1998 overpayment had been applied to the

1995 tax liability.

     On May 23, 2000, petitioner and her husband divorced.        The

decree of dissolution of marriage, entered by the Superior Court

for the State of Alaska, incorporated the written agreement

between petitioner and her husband concerning tax consequences

and allocation of obligations.    In their petition for dissolution

of marriage, dated March 31, 2000, petitioner and her husband had

listed their debts, who owed the debts, and who they agreed would

be responsible for paying the debts as follows:

                                         Presently       To Be
         Owed To        Amount            Owed By       Paid By

  IRS-Thomas 1993
    & 1994            $7,000.00           Husband       Husband
  IRS-Joint 1995       3,407.05            Joint        Husband
  IRS-Joint 1997       5,789.00            Joint     Husband & Wife

     On October 12, 2000, respondent received a $1,961.86 payment

on the 1995 tax liability.   This payment represented petitioner’s

Alaska permanent fund payment for 2000.

     On September 10, 2001, petitioner submitted a Form 8857,

Request For Innocent Spouse Relief, requesting equitable relief

for 1995, 1997, 1999, and 2000 (request for relief).2




     2
        The only year before the Court in this proceeding is
petitioner’s 1995 tax year.
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     On September 28, 2001, respondent received petitioner’s

request for relief.

     On January 30, 2002, in a final notice of determination,

respondent determined that petitioner was not entitled to relief

for 1995 pursuant to section 6015 because she submitted the

request for relief more than 2 years after respondent’s first

collection activity against her.

     On April 16, 2002, petitioner, while residing in Soldotna,

Alaska, filed a letter which the Court treated as an imperfect

petition for determination of relief from joint and several

liability on a joint return.   That same day, the Court ordered

petitioner to file, on or before May 14, 2002, a proper amended

petition for determination of relief from joint and several

liability on a joint return.

     On May 21, 2002, petitioner filed an amended petition for

determination of relief from joint and several liability on a

joint return seeking review of respondent’s determination to deny

equitable relief.

     On April 29, 2003, respondent filed a motion for summary

judgment.

     On April 30, 2003, the Court ordered petitioner to file a

response to respondent’s motion for summary judgment on or before

May 14, 2003, and calendared the motion for summary judgment for

hearing at the Court’s Anchorage, Alaska, trial session.
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     On May 19, 2003, petitioner filed a response to respondent’s

motion for summary judgment.

     On June 24, 2003, the Court filed intervenor’s reply to

petitioner’s response to respondent’s motion and intervenor’s

response to respondent’s motion for summary judgment.

     On September 2, 2003, petitioner filed a response to

intervenor’s reply to petitioner’s response to motion for summary

judgment.

     As of the date of the hearing, the outstanding balance on

the 1995 tax liability was $859.

Discussion

     An election pursuant to section 6015(b), (c), or (f) must be

made within 2 years of the Commissioner’s first collection

activity taken after July 22, 1998, against the taxpayer making

the election.   Internal Revenue Service Restructuring and Reform

Act of 1998, Pub. L. 105-206, sec. 3201(g)(2), 112 Stat. 740;

sec. 6015(b)(1)(E) and (c)(3)(B); Rev. Proc. 2000-15, sec. 5,

2000-1 C.B. 447, 449.3   The offset of an overpayment is a

collection activity   pursuant to section 6015.   Campbell v.

Commissioner, 121 T.C. 290, 292 (2003); see also secs. 1.6015-

5(b)(2)(i), 1.6015-9, Income Tax Regs. (defining an offset of an

overpayment against a liability pursuant to section 6402 as a

     3
        We note that petitioner does not question the validity of
Rev. Proc. 2000-15, 2000-1 C.B. 447; therefore, we need not
address the validity of the Revenue Procedure.
                                 - 6 -

collection activity effective for requests for relief from joint

and several liability filed on or after July 18, 2002).

     Pursuant to section 6402(a), respondent applied petitioner’s

1998 overpayment against her 1995 tax liability.       Accordingly,

respondent engaged in a collection activity against petitioner.

     Respondent’s first collection activity after July 22, 1998,

occurred on April 15, 1999.   Petitioner submitted her request for

relief on September 10, 2001.    Accordingly, petitioner made her

request for relief more than 2 years after respondent’s first

collection activity after July 22, 1998.       Therefore, petitioner’s

request for relief was untimely, and she is not entitled to

relief pursuant to section 6015.    See Campbell v. Commissioner,

supra at 292-293.

     Petitioner claims that it is unfair to deny her relief

because she thought her divorce decree relieved her of the 1995

tax liability.   While we sympathize with petitioner, her request

for relief was untimely.

     To reflect the foregoing,



                                              An appropriate order and

                                         decision will be entered.
