                  T.C. Summary Opinion 2002-125



                     UNITED STATES TAX COURT



          RICHARD S. AND MARY L. GARCIA, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 13479-00S.               Filed October 3, 2002.


     Richard S. and Mary L. Garcia, pro se.

     Natasha V. Chevalier, 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

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 at issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
                               - 2 -


     Respondent determined a deficiency of $5,607 in Federal

income tax and the 10-percent additional tax under section 72(t)

for an early distribution from a qualified retirement plan with

respect to petitioners' 1997 tax year.    After concessions by the

parties, the sole issue for decision is whether, under section

6402, respondent properly credited a payment by petitioners to

their 1996 tax year instead of 1997 as contended by petitioners.2

     Some of the facts were stipulated.   Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

Petitioners' legal residence at the time the petition was filed

was Irving, Texas.

     Petitioners' 1997 joint income tax return reflected total

tax payments of $7,500, a tax liability of $3,009, and an

overpayment of $4,491.   At trial, respondent conceded that

petitioners had made one additional payment of $582 on their 1997



     2
          Respondent conceded an unreported interest income
adjustment of $211, an unreported pension and annuity income
adjustment of $97.44, and the 10-percent additional tax under
sec. 72(t). Respondent also conceded petitioners' entitlement to
a trade or business expense deduction of $627 attributable to a
self-employed activity of Mrs. Garcia. Petitioners conceded
their liability for self-employment taxes on the net income from
Mrs. Garcia's trade or business activity, and respondent conceded
petitioners' entitlement to a deduction for one-half of the self-
employment tax under sec. 164(f). Petitioners further conceded
that the Social Security benefits paid to Mr. Garcia during 1997
totaled $11,385 instead of $10,740 reported on their return.
Finally, respondent conceded petitioners' entitlement to an
additional dependency exemption for their daughter, which they
had not claimed on their return.
                                - 3 -


taxes.   Thus, petitioners' tax payments for 1997 totaled $8,082.

At trial, petitioners contended their payments for 1997 taxes

totaled $10,082, evidenced by the following payments:


          $ 2,000     By check dated Feb. 8, 1997
            2,000     By check dated May 15, 1997
            2,000     By check dated July 2, 1997
            2,000     By check dated Dec. 3, 1997
            1,500     By check dated Mar. 11, 1998
              582     By bank money order dated Dec. 23, 1999
          $10,082     Total


     Respondent agreed that the payments shown above were in fact

made by petitioners and credited to their tax account.     However,

the first payment shown above, for $2,000 by check dated Feb. 8,

1997, was credited to petitioners' 1996 taxes; thus, the payments

credited to petitioners' 1997 taxes totaled $8,082.     Petitioners'

position is that the $2,000 payment on Feb. 8, 1997, should have

been credited to their 1997 tax account instead of 1996.

     The $2,000 check dated Feb. 8, 1997, did not bear any

notation to indicate the tax year to which the payment was to be

applied or credited, nor was the check accompanied by a voucher

or cover letter requesting or directing that the check be

credited to a specific tax year.

     Under section 6402, the Commissioner is expressly authorized

to credit the amount of an overpayment against any tax liability

of the taxpayer.    Sec. 6402(a).   Section 6512(b) generally

defines this Court's jurisdiction to determine overpayments.
                                 - 4 -


Paragraph (4) of that section serves to deny jurisdiction to this

Court "to restrain or review any credit or reduction made by the

Secretary under section 6402."    Sec. 6512(b)(4).3        Respondent

credited the $2,000 payment at issue to petitioners' 1996 taxes.

At the time of the payment, there were no instructions from

petitioners to the contrary.     Section 6512(b)(4) clearly

restricts the jurisdiction of this Court to consider petitioners'

contention that this credit should have been made to their 1997

taxes because to do so would constitute the review of a credit

under section 6402.   The Court, therefore, cannot consider

petitioners' claim that the payment at issue should have been

credited to their 1997 taxes.     Petitioners, therefore, paid

$8,082 on their 1997 tax liability, and the Court so holds.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                              Decision will be entered

                                         under Rule 155.




     3
          Sec. 6512(b)(4) was added by the Taxpayer Relief Act of
1997 (TRA 1997), Pub. L. 105-34, sec. 1451(b), 111 Stat. 788,
1054. Sec. 6512(b)(4) became effective on Aug. 5, 1997, TRA 1997
sec. 1451(c), 111 Stat. 1054, and is therefore applicable to this
case.
