                  T.C. Summary Opinion 2003-170



                     UNITED STATES TAX COURT



                  YANCY K. YOUNG, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11797-02S.            Filed December 22, 2003.


     Yancy K. Young, pro se.

     Stephen J. Neubeck, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.


     1
        Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year in issue,
and Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 2 -

     Respondent determined a deficiency of $500 in petitioner’s

2000 Federal income tax.   The issue is whether an erroneous

refund issued to petitioner is a gift from respondent.

Petitioner resided in Huber Heights, Ohio, at the time the

petition was filed.

     This case was submitted fully stipulated under Rule 122, and

the applicable facts may be summarized as follows.2   In preparing

his 2000 Federal income tax return, petitioner, on line 6c(1) of

Form 1040A, U.S. Individual Income Tax Return, listed “Yancy L.

Young” as his dependent and checked Box 6c(4) showing Yancy as a

qualifying child for the child tax credit.   Petitioner, however,

did not claim a child care credit on the return.   Respondent

recalculated petitioner’s tax liability to reflect the child tax

credit and refunded $500 to petitioner.   Subsequently, respondent

examined petitioner’s return and disallowed the child tax credit

because Yancy was not a qualifying child.

     Petitioner concedes that he is not entitled to the child tax

credit.3   Petitioner contends that respondent’s erroneous refund

was a gift to him.    While respondent has the authority to make a




     2
        The facts are not in dispute and the issue is primarily
one of law. Sec. 7491, concerning burden of proof, has no
bearing on this case.
     3
         A deficiency exists because the erroneously issued
refund is considered a rebate under sec. 6211(a)(2). Laughlin v.
Commissioner, T.C. Memo. 1993-122.
                                 - 3 -

refund of overpayments, see sec. 6402(a),4 we are unaware of any

provision that authorizes him to make gifts.       Furthermore, we

would be hard pressed to find that respondent made the payment

based on a detached and disinterested generosity, out of

affection, respect, or admiration of petitioner so as to

constitute a gift.   See Commissioner v. Duberstein, 363 U.S. 278,

285 (1960).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.




     4
         Upon receipt of a return, if respondent “determines that
the payments by the taxpayer * * * are in excess of the amount of
tax shown on the return, * * * [respondent] may make credit or
refund of such overpayment without awaiting examination of the
completed return”. Sec. 301.6402-4, Proced. & Admin. Regs.
