                  T.C. Summary Opinion 2004-53



                     UNITED STATES TAX COURT



          LARRY E. AND BARBARA L. ANDRA, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20242-02S.             Filed May 11, 2004.



     Larry E. Andra, pro se.

     Wesley F. McNamara, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered



     1
          Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year at issue. Rule references are to the Tax Court Rules of
Practice and Procedure.
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is not reviewable by any other court, and this opinion should not

be cited as authority.

     Respondent determined a deficiency of $1,100 in petitioners’

Federal income tax for the year 2000.

     At the time the petition was filed, petitioners' legal

residence was Preston, Idaho.

     Petitioners filed a Federal income tax return for the year

2000 that showed a tax liability of $5,231, an estimated penalty

of $42, and a withholding credit of $777.    Petitioners did not

pay the $4,496 balance at the time they filed their return.

During the year 2000, petitioners received an early distribution

from an individual retirement account (IRA) in the amount of

$4,402.   Petitioners did not include the $4,402 as income on

their tax return.   After being contacted by the collection

division of the Internal Revenue Service, petitioners made

arrangements to pay their tax liability in a series of

installments.   Petitioners contend that, in their negotiations

for the installment arrangement, it was their understanding that

the income tax due on the IRA was included in the total amount

they were to pay to the Internal Revenue Service.    The sole

issue, therefore, is whether petitioners paid the $1,100

deficiency, which is the tax due on the IRA distribution they

received during the year 2000.    Respondent agrees that, except

for the $1,100 attributable to the IRA, the taxes, including
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interest and penalties, on the income reported by petitioners on

their 2000 return have been paid.   Petitioners agree that the IRA

distribution was includable in gross income.

     Contrary to this Court's Rules of Practice and Procedure,

the parties did not file with the Court a written stipulation of

facts.   Rule 91.   Nonetheless, respondent offered into evidence

at trial the necessary documentary information upon which the

Court makes its findings of fact and opinion.   The facts, as

recited, are not in dispute, except petitioners' contention that

payments they made to the Internal Revenue Service included the

tax on the pension distribution upon which the notice of

deficiency is based.

     The pension plan distribution was evidenced by the issuance

by the payor of a Form 1099-R, Distributions From Pensions,

Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance

Contracts, etc., filed with the Internal Revenue Service.    As

noted, petitioners acknowledge receipt of the proceeds of the

distribution.

     Sometime after petitioners filed their 2000 income tax

return, they were contacted by collection agents of the Internal

Revenue Service relative to the unpaid tax shown on their 2000

tax return as well as unpaid tax for their 2001 tax year.

Although petitioners contend that the matter of the IRA

distribution was discussed, and they understood that their
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installment agreement included payment of the income tax due on

that distribution, there is no evidence in the record, nor do

petitioners contend that they ever agreed to an assessment of the

deficiency attributable to that income item.   The notice of

deficiency included a form that petitioners could have signed by

which they agreed to an immediate assessment of the deficiency,

in which event, it would have precluded their right to contest

the deficiency in this Court and would have allowed respondent to

proceed with assessment and collection of the tax due on the IRA

distribution.   Petitioners did not sign this waiver and instead

filed their petition in this Court in which their sole contention

is that the various payments to the Internal Revenue Service

included the tax liability associated with the IRA.

     At trial, respondent offered into evidence the official

transcripts of petitioners' accounts for the years 2000 and 2001.

All of the entries in these accounts were reviewed at trial, and

petitioners presented no evidence reflecting any errors in these

entries, nor proof of any additional payments not shown on the

transcripts.    These transcripts show that petitioners fully paid

their tax liabilities for the 2 years in question as reported on

their income tax returns for those years.   The transcript for the

year 2000, however, does not reflect any assessment for the tax

due on the IRA distribution reflected on the Form 1099-R, nor is

there any evidence that petitioners ever consented to an
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assessment or that respondent ever made an assessment relative to

this distribution.   The payments and credits on the transcripts

reflect payment of the tax liabilities reported on the returns

including interest and penalties, and the transcripts reflect no

amounts in excess of the tax liabilities for the 2 years as

reported on petitioners' income tax returns.   Respondent's

position is that the tax due on the IRA distribution was not

assessed, and, since petitioners instituted this action,

respondent is precluded from making an assessment.

     The Court agrees with respondent that the transcripts of

petitioners' accounts for 2000 and 2001 do not reflect an

assessment of the deficiency attributable to the IRA distribution

to petitioners.

     Generally, no assessment or collection of a deficiency in

tax can be made against a taxpayer until there is mailed to the

taxpayer a notice of deficiency under section 6212(a).   Once a

notice of deficiency is issued, and the taxpayer files a timely

petition with this Court, the restrictions on assessment and

collection generally continue until such time as the decision of

this Court becomes final.   Any premature assessment or collection

of a deficiency may be enjoined by a proceeding in a proper

court, including the Tax Court.   Sec. 6213(a).

     The restrictions on assessment and collection do not apply

in certain situations set out in section 6213(b), (c), (d), and
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(e).    In such situations, the deficiency may be assessed and

collected against the taxpayer upon notice and demand.    Section

6213(d) provides:


            (d) Waiver of restrictions.-–The taxpayer shall at any
       time (whether or not a notice of deficiency has been issued)
       have the right, by a signed notice in writing filed with the
       Secretary, to waive the restrictions provided in subsection
       (a) on the assessment and collection of the whole or any
       part of the deficiency.


Section 301.6213-1(d), Proced. & Admin. Regs., provides that,

after a waiver has been acted upon by the District Director, and

the assessment has been made in accordance with its terms, the

waiver cannot be withdrawn, and collection can be undertaken

against the taxpayer.

       In this case, respondent never made an assessment against

petitioners for the tax deficiency attributable to the IRA

distribution, and, indeed, respondent was prohibited from making

an assessment in the absence of a waiver or consent by

petitioners.    Petitioners never consented to an assessment.    If

agents of the Internal Revenue Service represented to petitioners

that their tax payments included the deficiency arising from the

IRA distribution, such representation was in error.    It has long

been held that respondent is not estopped and cannot be bound by

erroneous acts or omissions by agents of the Internal Revenue
                                - 7 -


Service.    Estate of Emerson v. Commissioner, 67 T.C. 612, 617-618

(1977).

     The Court is satisfied from the record that petitioners'

payments to the Internal Revenue Service did not include payment

of the tax attributable to the IRA distribution.      Accordingly,

respondent is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                             Decision will be entered

                                        for respondent.
