                       T.C. Memo. 1997-267



                     UNITED STATES TAX COURT


          JAMES C. AND JANE A. WETZEL, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 20871-95.                      Filed June 12, 1997.


     Donald J. O'Connor, for petitioners.

     Marc A. Shapiro, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION



     POWELL, Special Trial Judge:   This case was assigned

pursuant to the provisions of section 7443A(b)(3) and Rules 180,

181, and 182.1




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

     Respondent determined a deficiency in petitioners' Federal

income tax for the taxable year 1992 in the amount of $315.

Petitioners resided in Hinckley, Ohio, at the time they filed

their petition.

     The issue is whether petitioners are entitled to offset

against a deficiency in income tax an overpayment that was

previously applied to a different liability.

                          FINDINGS OF FACT

     The facts are not disputed and may be summarized as follows.

Petitioners filed a 1992 joint Federal income tax return

indicating that they were entitled to a refund in the amount of

$475 (the $475 overpayment).   Respondent applied the $475

overpayment against an outstanding liability determined under

section 6672 pursuant to the authority granted in section

6402(a).2   Subsequently, respondent determined a deficiency in

petitioners' 1992 Federal income tax in the amount of $315.    The

parties agree that petitioners are entitled to a credit of $150

for income tax withheld to be offset against the deficiency.

Petitioners do not otherwise dispute the deficiency

determination.    Thus, disregarding the propriety of the treatment

of the $475 overpayment, the parties agree that petitioners


2
     As relevant here, sec. 6402(a) provides: "In the case of
any overpayment, the Secretary * * * may credit the amount of
such overpayment * * * against any liability in respect of an
internal revenue tax on the part of the person who made the
overpayment and shall * * * refund any balance to such person."
                               - 3 -

underpaid their 1992 Federal income tax by $165.    Respondent

contends that this is the end of the matter.    Petitioners assert

that they are entitled to offset the $475 overpayment against

this liability and are therefore entitled to a refund in the

amount of $310.

                              OPINION

     At the outset, we note that respondent had the authority to

apply petitioners' overpayment against any outstanding tax

liability they owed, and that such an application does not

preclude respondent from subsequently determining a deficiency

with respect to the taxable year of the overpayment.    Sec.

6402(a); Terry v. Commissioner, 91 T.C. 85 (1988); Jarrett v.

Commissioner, T.C. Memo. 1992-181.     We do not understand

petitioners to contend otherwise.

     As we understand it, petitioners assert that they are

entitled to credit the $475 overpayment against their 1992 tax

deficiency and receive a refund of the excess.    However,

petitioners have already received a $475 refund in the form of a

reduction of the outstanding section 6672 liability.

Consequently, the application of the $475 overpayment to

petitioners' 1992 tax deficiency that petitioners seek would

amount to a double refund, to which petitioners are obviously not

entitled.   Jarrett v. Commissioner, supra.
                              - 4 -

     In addition, petitioners have not shown that the $475

overpayment exceeded the section 6672 liability.   Thus, to the

extent petitioners may contend that they are entitled to some
                              - 5 -

portion of the $475 overpayment because section 6402 was not

applied correctly by respondent, they have not met their burden

of proof.   Rule 142(a).

                                           Decision will be entered

                                      for respondent.
