                  T.C. Summary Opinion 2002-126



                      UNITED STATES TAX COURT



                  JOHN F. HEYSE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6638-01S.              Filed October 3, 2002.



     John F. Heyse, pro se.

     James N. Beyer, for respondent.



     DINAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463.1   The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.

     This case is before us on petitioner’s petition under


     1
      Section references are to the Internal Revenue Code in
effect at the time the petition was filed in this case.
                                 - 2 -

section 6015(e)(1) for relief from joint and several liability.

Specifically, petitioner seeks a refund pursuant to respondent’s

determination that he is entitled to relief under section 6015(c)

with respect to taxable year 1993.

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

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.    Petitioner resided in

Wilmington, Delaware, on the date the petition was filed in this

case.

     There are no relevant disputed facts in this case.

Petitioner and his former spouse filed a joint Federal income tax

return for taxable year 1993.    Petitioner was subsequently

divorced from his spouse, and he has lived alone and has been

filing separate returns since 1994.

     In 1996, respondent assessed a deficiency of $15,479, plus

interest, relating to petitioner’s taxable year 1993.    This

deficiency was never paid directly by petitioner to respondent.

On February 23, 1998, a Federal income tax overpayment by

petitioner of $6,842 with respect to his 1997 taxable year was

applied to the 1993 liability.    On April 12, 1999, a 1998

overpayment by petitioner of $9,891 was applied to the remaining

1993 liability.2

     2
      The amounts credited to petitioner’s 1993 tax liability
exceed the deficiency amount. Respondent’s counsel stated at
                                                   (continued...)
                               - 3 -

     On August 9, 1999, petitioner requested relief with respect

to the 1993 liability under section 6015(b), (c), and (f).    On

March 27, 2001, respondent issued a notice of determination

granting petitioner partial relief pursuant to section 6015(c).

The notice stated that petitioner had requested relief in the

amount of $24,093, that relief had been granted in the amount of

$20,367, and that there was tax remaining of $3,729.3    The notice

also stated that refunds were not allowed with respect to section

6015(c) relief.

     Petitioner filed a petition in this Court seeking relief

pursuant to section 6015.   He requests that this Court:

     determine that Petitioner is eligible for relief under
     Section 6015 in the amount of $20,367.00 and direct the
     Internal Revenue Service to issue a refund to Petitioner in
     the amount of $20,367.00, together with statutory interest
     thereon, pursuant to Section 6015 of the Internal Revenue
     Code.

Respondent argues that any refund is barred by section

6015(g)(3).

     Section 6015, as amended, was originally enacted in 1998 to

replace former section 6013(e).   Internal Revenue Service

     2
      (...continued)
trial that the excess was applied to assessed interest. Neither
party specifically addressed this point, but respondent
presumably has relieved petitioner from liability for any
remaining unpaid interest.
     3
      It is unclear what the basis for this determination was,
however, because sec. 6015(c) relief applies to assessed
deficiencies. Sec. 6015(c)(1). The deficiency in petitioner’s
case was only $15,479.
                                - 4 -

Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3201,

112 Stat. 685, 734.   The provision provides relief from joint and

several liability for certain taxpayers who file a joint Federal

income tax return.    In general terms, there are three avenues of

relief under section 6015:    Section 6015(b) may provide relief

with respect to certain erroneous items on the return, section

6015(c) may provide for a separation of liability for separated

taxpayers, and section 6015(f) may provide equitable relief for

taxpayers who otherwise do not qualify for relief under either of

the other two provisions.    As a general rule, taxpayers who

qualify for relief under section 6015(b) or (f)--but not section

6015(c)--are entitled to a refund or credit attributable to the

application of section 6015.    Sec. 6015(g)(1), (3).

     After a taxpayer requests relief under section 6015, the

taxpayer may petition this Court for a review of respondent’s

subsequent determination.    Sec. 6015(e)(1)(A).   Our jurisdiction

in cases brought under section 6015(e)(1) encompasses a review of

respondent’s determination with respect to all relief afforded by

section 6015.   Fernandez v. Commissioner, 114 T.C. 324, 331

(2000).   Thus, we have jurisdiction to review respondent’s

determination that no refund is due petitioner pursuant to

section 6015(g)(3).   However, we note that we have jurisdiction

with respect to only a portion of the tax liability at issue in

this case.   Overpayments which are credited to another year’s tax
                               - 5 -

liability are deemed to be payments at the time the credit is

made.   Secs. 6402(a); 7422(d); Culpepper-Smith v. United States,

82 AFTR 2d 98-6212, 98-2 USTC par. 50,721 (E.D. Pa. 1998).

Accordingly, payment of petitioner’s 1993 tax liability was made

on February 23, 1998, and April 12, 1999.   Section 6015 applies

to tax liabilities arising after or remaining unpaid on July 22,

1998.   Internal Revenue Service Restructuring and Reform Act of

1998, Pub. L. 105-206, sec. 3201(g)(1), 112 Stat. 685, 740.   In

this case, section 6015 applies only to that portion of

petitioner’s tax liability which remained unpaid after respondent

applied the first credit on February 23, 1998.   Because the sole

basis for our jurisdiction in this case is section 6015(e), we

lack authority to grant relief with respect to the portion of the

1993 tax liability which was paid on February 23, 1998.   Brown v.

Commissioner, T.C. Memo. 2002-187.

     It is clear that the deficiency determined by respondent for

taxable year 1993 has been paid in full, and that the basis of

the relief respondent granted to petitioner was section 6015(c).

Consequently, section 6015(g)(3) bars any refund to petitioner as

a result of respondent’s determination that petitioner was

entitled to relief.   Respondent’s determination letter does not

address petitioner’s alternative requests for relief under

section 6015(b) and (f), for which a refund would not be barred.

Nor was this issue addressed by petitioner in the petition or at
                               - 6 -

trial.4   Furthermore, the record before us contains insufficient

facts to support a finding that petitioner was entitled to relief

under either alternative provision.5

     Petitioner argues that he is entitled to a refund because

the payment of the deficiency was “involuntary” in that the

liability was satisfied by respondent’s crediting of later years’

overpayments to the 1993 deficiency, without notification to or

permission by petitioner.   Respondent, however, has discretion to

credit overpayments to any outstanding tax liabilities, and the

crediting of such an overpayment is treated as if the taxpayer

had received a refund and in turn paid the tax liability.    Secs.

6402(a), 7422(d); Culpepper-Smith v. United States, supra.     The

1993 tax liability has been satisfied, and section 6015(g)(3)

clearly prohibits a refund resulting from relief afforded by

section 6015(c).

     Reviewed and adopted as the report of the Small Tax Case

Division.


     4
      Petitioner states in his petition that “Taking into account
all the facts and circumstances, it is inequitable to hold the
Petitioner liable.” Language similar to this is found in both
sec. 6015(b) and (f). However, petitioner did not specifically
refer to either of these provisions, and at trial the focus of
petitioner’s argument was on the fact that payment of the 1993
tax deficiency was “involuntary”, as discussed infra.
     5
      Petitioner would not be entitled to relief under sec.
6015(f) unless it were shown that, contrary to respondent’s
determination, petitioner is not entitled to relief under sec.
6015(c). Sec. 6015(f)(2).
                            - 7 -

To reflect the foregoing,

                                    Decision will be entered

                            for respondent.
