                        T.C. Memo. 2004-93



                      UNITED STATES TAX COURT



   THERESA E. BARTMAN, f.k.a. THERESA ALBRECHT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8139-02.              Filed April 6, 2004.


     Jack B. Schiffman, for petitioner.

     Jonae A. Harrison, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     FOLEY, Judge:   By Final Notice of Determination dated

January 29, 2002, respondent determined that petitioner was not

entitled to relief from joint and several income tax liability

relating to 1994, 1995, or 1996.   After the petition was filed,

respondent granted petitioner relief from joint and several
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liability relating to the years in issue.   The sole issue for

decision is whether petitioner is entitled to a refund of her

1995 overpayment.   The parties submitted this case fully

stipulated pursuant to Rule 122.1

                         FINDINGS OF FACT

     Petitioner and Mark R. Albrecht timely filed their 1994,

1995, and 1996 joint Federal income tax returns.    On their 1995

return, petitioner and Mr. Albrecht reported a $12,377 balance

due that was not paid when the return was filed.    Petitioner and

Mr. Albrecht were separated in 1997 and divorced in 1999.

Petitioner timely filed her 1997 individual return on which she

reported, and requested a refund of, a $1,922 overpayment.    On

June 29, 1998, respondent credited petitioner’s 1997 overpayment

against a portion of her 1995 tax liability.

     On February 2, 2001, petitioner requested, pursuant to

section 6015(b), (c), and (f), relief from joint and several

liability relating to 1994, 1995, and 1996.    On March 4, 2001,

petitioner filed, on a Form 1040X, Amended U.S. Individual Income

Tax Return (Form 1040X), a claim for refund relating to 1997.       In

an attachment to the Form 1040X, petitioner stated that

respondent’s credit of petitioner’s 1997 overpayment against a


     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.
                              - 3 -

portion of her 1995 tax liability should be refunded to

petitioner “based upon her meritorious claim for Innocent Spouse

Relief.”

     By Final Notice of Determination dated January 29, 2002,

respondent determined that petitioner was not entitled to relief

from joint and several liability relating to 1994, 1995, or 1996.

In response, on May 6, 2002, petitioner, while residing in

Wildwood, Missouri, filed a petition pursuant to section

6015(e)(1) seeking review of respondent’s determination.    On

April 15, 2003, respondent determined that petitioner was

entitled to relief from joint and several liability, pursuant to

section 6015(b), relating to 1994 and, pursuant to section

6015(f), relating to 1995 and 1996.

                             OPINION

     Petitioner contends, in essence, that the overpayment in

issue relates to 1997 and, therefore, pursuant to section

6511(a), her refund claims were timely.   Respondent contends that

because respondent made no determination relating to 1997, the

Court has no jurisdiction over that year.   Respondent further

contends that the overpayment in issue relates to 1995, and,

therefore, petitioner is not entitled to a refund of her

overpayment because her refund claims were made after the
                               - 4 -

expiration of the period of limitations prescribed by section

6511(a).

     We do not have jurisdiction over 1997 because respondent

made no determination relating to that year.     Sec. 6015(e)(1);

Block v. Commissioner, 120 T.C. 62, 65 (2003).     Nevertheless, we

must determine the effect of respondent crediting, pursuant to

section 6402(a), petitioner’s 1997 overpayment against a portion

of her 1995 tax liability.   As a result of this credit and

respondent’s determination that petitioner was entitled to

section 6015(f) relief, petitioner overpaid her 1995 tax

liability.   Sec. 6015(g)(1); Washington v. Commissioner, 120 T.C.

137, 160 (2003) (stating that a taxpayer granted, pursuant to

section 6015(f), relief from joint and several liability is,

subject to the limitations set forth in section 6511, entitled to

a refund of an overpayment).   Thus, the issue is whether

petitioner is entitled to a refund of that overpayment.

     Petitioner’s request for relief from joint and several

liability, filed February 2, 2001, is her earliest refund claim

relating to her 1995 overpayment.2     Washington v. Commissioner,

supra at 162 (stating that a taxpayer’s request for relief from


     2
        Petitioner’s 1997 return, filed prior to the July 22,
1998, enactment of sec. 6015, is not a refund claim relating to
1995 because it could not have adequately apprised respondent of
the basis of petitioner’s 1995 refund claim. Washington v.
Commissioner, 120 T.C. 137, 160-161 (2003).
                                 - 5 -

joint and several liability encompasses a refund request).        This

claim was filed more than 3 years after the filing of the 1995

return on April 15, 1996, and more than 2 years after respondent

credited the 1997 overpayment against a portion of petitioner’s

1995 tax liability on June 29, 1998.       Secs. 6511(a) (providing

that to obtain a refund of the overpayment, a taxpayer must file

a refund claim within the later of 3 years from the date the

return was filed or 2 years from the date the tax was paid),

7422(d).

     Thus, petitioner is not entitled, pursuant to section

6511(b)(1), to a refund of her overpayment relating to 1995.

     Contentions we have not addressed are irrelevant, moot, or

meritless.

     To reflect the foregoing,



                                              Decision will be entered

                                         for respondent.
