                         T.C. Memo. 2004-127



                       UNITED STATES TAX COURT



                TERI GEISEN ROOKS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8392-02.                 Filed May 27, 2004.


     Teri Geisen Rooks, pro se.

     Louise R. Forbes, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined that petitioner

qualifies for partial relief from joint and several liability

pursuant to section 6015(f) for 1992.1    The issue for decision is



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 2 -

whether petitioner is entitled to a refund of overpayments

respondent applied to her 1992 tax liability.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.

     In 1992, petitioner married John F. Izzi.   Petitioner and

Mr. Izzi filed a joint Federal income tax return for 1992 (1992

return).

     Respondent examined the 1992 return.   Respondent determined

a $7,058 deficiency and an $823 addition to tax2 for 1992.     The

deficiency and addition to tax resulted from early distributions

from petitioner’s pension and Mr. Izzi’s pension during 1992--

petitioner’s taxable distribution was $13,378 and Mr. Izzi’s

taxable distribution was $16,026.   Of the additional $7,881

respondent determined was due, 45.5 percent ($3,585.86) was

attributable to petitioner’s pension distribution and 54.5

percent ($4,295.14) was attributable to Mr. Izzi’s pension

distribution.   Ultimately, petitioner agreed to respondent’s

determination (i.e., that a $7,058 deficiency and an $823

addition to tax were due for 1992).



     2
        From the record, it is unclear whether this was an
addition to tax or a penalty. The parties stipulated that it was
an addition to tax. For clarity, we shall refer to this amount
as an addition to tax.
                               - 3 -

     Petitioner and Mr. Izzi started filing separate income tax

returns in 1994.

     In 1997, petitioner and Mr. Izzi divorced.

     Petitioner overpaid her income taxes for 1998, 1999, 2000,

and 2001 in the amounts of $2,871, $3,268, $1,801, and $1,422,

respectively.   Petitioner received a refund of her 2000 tax of

$1,801.

     On March 14, 2001, petitioner mailed respondent a Form 8857,

Request for Innocent Spouse Relief (And Separation of Liability

and Equitable Relief).   Petitioner solely requested equitable

relief for 1992.   Petitioner claimed to have paid $5,189.62 of

the $7,881 owed for 1992.   Petitioner also noted a permanent

restraining order, issued by a local court, against Mr. Izzi

relating to a felony committed against her family.

     On February 13, 2002, Appeals Officer Therese A. Xavier

wrote to petitioner in response to a telephone message she

received from petitioner on February 8, 2002.   Ms. Xavier

attached a copy of petitioner’s 1992 nonmaster file transcript

detailing assessments (including interest), payments, and

petitioner’s balance for 1992 (1992 nonmaster file transcript).

     Petitioner’s 1992 nonmaster file transcript shows petitioner

had a balance due, including interest, of $2,182.26 as of
                               - 4 -

February 28, 2002.3   Petitioner’s 1992 nonmaster file transcript

also shows that respondent essentially had granted some form of

section 6015 relief to petitioner.     Respondent allocated $3,211

of the tax (approximately 45.5 percent) and $374.47 of the

addition to tax (45.5 percent) for 1992 to petitioner.    Starting

with June 1993, respondent assessed interest on these amounts

quarterly.   On April 15, 1999, respondent applied $1,921.62 of

petitioner’s 1998 overpayment to reduce the balance of the tax

allocated to petitioner.4   On April 15, 2000, respondent applied

$1,998.12 of petitioner’s 1999 overpayment to reduce the balance

of the tax allocated to petitioner.    Respondent also applied

$515.29 of petitioner’s 1999 overpayment to reduce the balance of

the addition to tax allocated to petitioner.

     On February 14, 2002, respondent mailed petitioner a notice

of determination concerning your request for relief from joint

and several liability under section 6015 (notice of

determination).   Respondent determined that petitioner was

eligible for relief pursuant to section 6015(f) of $3,5855 for



     3
        It is unclear why the transcript shows the amount
petitioner’s balance will be as of Feb. 28, 2002, rather than as
of the date the transcript was printed.
     4
        Respondent applied the remainder of petitioner’s 1998
overpayment ($949.38) to petitioner’s outstanding employment tax
liabilities.
     5
        The similarity of numerical figures present in this case
appears to be no more than coincidence.
                                 - 5 -

her 1992 income tax liability.    Respondent determined that

petitioner remained liable for the remaining $1,801 of the

$5,3866 liability for 1992.

     Form 2866, Certificate of Official Record, showed

petitioner’s account balance for 1992, as of March 21, 2002, as

$5,385.56.    This was based on a tax assessment of $7,058, a

penalty assessment of $823, an interest assessment of $2,684.48,

fees and costs of $10, a $1,921.62 credit applied on April 15,

1999, a $3,268 credit applied on April 15, 2000, a $1,801 credit

applied on April 15, 2001, and a credit reversal of $1,801

applied on April 15, 2001.

                               OPINION

     Petitioner does not dispute respondent’s determination that

she is entitled to partial relief pursuant to section 6015(f).

Petitioner essentially argues that, in light of respondent’s

granting partial section 6015(f) relief, respondent has not

correctly credited her account for 1992 and that she is due a

refund.    Respondent argues that the Court does not have

jurisdiction to determine whether respondent properly credited

petitioner’s payments to her account or whether petitioner is

entitled to a refund to the extent attributable to his

determination that petitioner is entitled to section 6015(f)

relief.    Respondent is mistaken.


     6
          This amount included interest.
                                 - 6 -

     Section 6015(g) governs the allowance of credits and refunds

in cases where a taxpayer is granted relief pursuant to section

6015.   Section 6015(g)(1) provides:     “Except as provided in

paragraphs (2) and (3), notwithstanding any other law or rule of

law (other than section 6511, 6512(b), 7121, or 7122), credit or

refund shall be allowed or made to the extent attributable to the

application of this section.”    Accordingly, we shall proceed to

determine the proper amount owed by, or to, petitioner pursuant

to section 6015(g).   See Washington v. Commissioner, 120 T.C. 137

(2003); see also Bartman v. Commissioner, T.C. Memo. 2004-93

(determining the effect of the Commissioner’s crediting, pursuant

to section 6402(a), the taxpayer’s overpayment for 1997 to the

liability for 1995 when the Commissioner determined the taxpayer

was entitled to relief pursuant to section 6015(f) for 1995).

     Section 6511 requires that a claim for refund or credit of

an overpayment of any tax in respect of which the taxpayer is

required to file a return must be filed within 3 years from the

time the return was filed or 2 years from the time the tax was

paid, whichever of the periods expires later.      Washington v.

Commissioner, supra at 160.     On March 14, 2001, petitioner filed

her request for section 6015 relief.      This request encompasses a

refund request.   Id. at 162; see Bartman v. Commissioner, supra.

Respondent made his earliest refund offset to petitioner’s 1992
                               - 7 -

tax year on April 15, 1999.   Accordingly, petitioner’s claim was

timely.

     At trial, respondent explained that he had granted

petitioner section 6015(f) relief for the portion of the 1992 tax

liability that was not attributable to her (54.5 percent) and

that petitioner remained liable for the portion of the 1992 tax

liability that was attributable to her (45.5 percent).

Petitioner does not dispute this determination or argue for a

different allocation.

     Petitioner’s 1992 nonmaster file transcript appears to

reflect this determination by allocating 45.5 percent of the tax

and addition to tax for 1992 to petitioner.    In the notice of

determination, however, respondent appears to have granted relief

only on the portion of the 1992 liability that remained

outstanding around the date of the determination ($5,386) as

listed in the Form 2866.7   This was inappropriate.   See

Washington v. Commissioner, supra.

     Petitioner’s claim essentially is that respondent’s

calculation in the notice of determination is incorrect, she does

not owe $1,801, and she may be due a refund.    Petitioner conceded

at trial that she was liable for the portion of the 1992 tax

liability that was attributable to her (45.5 percent).      We cannot



     7
        Furthermore, the amount of relief granted was not 54.5
percent of the then-outstanding balance.
                                - 8 -

tell from the notice of determination how respondent arrived at

the $1,801 amount owed by petitioner.      Accordingly, we shall

review petitioner’s 1992 liability step by step.

     As an initial matter, we agree with respondent’s computation

contained in petitioner’s 1992 nonmaster file transcript of the

amounts allocable to petitioner for 1992 after granting partial

section 6015 relief.    Accordingly, respondent was correct to

compute the amount of tax and the addition to tax owed by

petitioner as $3,211 and $374.47, respectively.

     On April 15, 1999, respondent applied petitioner’s 1998

overpayment as follows:    $1,921.62 to the tax allocated to

petitioner for 1992 and $949.38 to petitioner’s employment tax

liabilities.8

     Respondent claims that he applied petitioner’s 1999

overpayment of $3,268 to the amount of the 1992 liability

respondent allocated to petitioner pursuant to section 6015(f).

On April 15, 2000, respondent applied petitioner’s 1999

overpayment to petitioner’s 1992 nonmaster file transcript as

follows:    $1,998.12 to the tax allocated to petitioner for 1992

and $515.29 to the addition to tax allocated to petitioner for

1992.    This totals only $2,513.41.    Although the Form 2866

reflects a $3,268 credit for 1999 to the total liability (of



     8
        Petitioner’s employment tax liabilities are not before
the Court.
                               - 9 -

petitioner and Mr. Izzi) for 1992, petitioner’s 1992 nonmaster

file transcript does not reflect a credit for the full amount of

the 1999 overpayment to the amount of the 1992 liability

respondent allocated to petitioner pursuant to section 6015(f).

The remaining $754.59 of petitioner’s 1999 overpayment is

unaccounted for.   Upon the basis of the foregoing, we conclude

that respondent should have credited, as of April 15, 2000, an

additional $754.59 to petitioner to reduce the amount of the 1992

liability respondent allocated to petitioner pursuant to section

6015(f).

     Respondent withheld petitioner’s overpayment for 2001.

Petitioner’s 2001 refund postdated the documents submitted to the

Court.   Accordingly, neither the $1,801 listed on the notice of

determination nor the $2,182.26 reflected in petitioner’s 1992

nonmaster file transcript as petitioner’s balance as of February

28, 2002, included any credit for her 2001 overpayment.

Respondent shall credit, as of April 15, 2002, $1,422 to reduce

the amount of petitioner’s liabilities.

     In addition to the application of credits to petitioner’s

1992 nonmaster file, respondent shall recalculate the interest

accrued on petitioner’s 1992 nonmaster file which reflects the

allocation of liability respondent granted pursuant to section

6015(f).   Only after such a recalculation will it be possible to

determine whether petitioner has a balance due or whether there
                              - 10 -

will be an overpayment (i.e., petitioner may be entitled to a

refund).   See Rosenthal v. Commissioner, T.C. Memo. 2004-89 n.6;

Ziegler v. Commissioner, T.C. Memo. 2003-282.

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we find them to be irrelevant or without merit.

     To reflect the foregoing,


                                         Decision will be entered

                                    under Rule 155.
