                  T.C. Summary Opinion 2003-159



                     UNITED STATES TAX COURT



                AARON DOUGLAS LAW, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 16498-02S.          Filed October 27, 2003.


     Aaron Douglas Law, pro se.

     Dustin M. Starbuck, for respondent.



     COUVILLION, Special Trial Judge:   This case was heard

pursuant to section 7463 in effect when 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, section references
hereafter 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.
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     Respondent determined a deficiency of $7,267 in petitioner's

2000 Federal income tax.

     The sole issue for decision is whether petitioner is liable

for the alternative minimum tax (AMT) under section 55.

     Some of the facts were stipulated.         Those facts and the

accompanying exhibits are so found and are incorporated herein by

reference.   Petitioner's legal residence at the time the petition

was filed was Hot Springs, Virginia.

     Petitioner filed a Federal income tax return for 2000

reporting the following gross income items:


     Wages and salaries                       $43,953.68
     Taxable interest income                       44.14
     Dividend income                            1,186.75
     Taxable refunds                              759.43
     Taxable IRA distributions                 16,714.78
       Total income                           $62,658.78


Petitioner's return included a Schedule A, Itemized Deductions,

in which he claimed itemized deductions for the following:


     State and local taxes paid                            $ 2,115.52
     Charitable contributions                                  200.00
     Job expenses and other miscellaneous deductions
       (in excess of 2% of adjusted gross income)           59,197.20
       Total itemized deductions                           $61,512.72


After deducting the itemized deductions, petitioner's remaining

income of $1,146.06 was offset by the $2,800 personal exemption.

Thus, petitioner had zero taxable income and no income tax
                               - 3 -


liability.   He claimed a refund of $10,345.41 in Federal income

tax withholdings.

     Respondent made no adjustments to either the income or the

itemized deductions on petitioner's return.   Petitioner did not

include with his return the necessary form for computation of the

AMT under section 55.   After he was contacted by respondent,

petitioner submitted to the Internal Revenue Service (IRS) Form

6251, Alternative Minimum Tax–-Individuals, which reflected an

AMT of $7,266.83.   Petitioner made no payments to the IRS of the

AMT, although he paid $1,826.54 as additional tax under section

72(t) for his early withdrawal during 2000 of a qualified pension

plan.   In the notice of deficiency, respondent determined that

petitioner was liable for the AMT in the amount of $7,267.    No

other determinations were made with regard to petitioner's 2000

Federal income tax return.

     Petitioner's principal argument is that, if he is held

liable for the AMT, that liability effectively negates or

eliminates the tax benefits of his itemized deductions.

Petitioner further argues that, if he is liable for the AMT, the

accrued interest of $510.44 on the deficiency should be abated

because the deficiency is one he did not know existed at the time

he filed his return.

     Section 55(a) imposes a tax equal to the excess of the

tentative minimum tax over the regular tax.   The tentative
                                  - 4 -


minimum tax for noncorporate taxpayers is equal to 26 percent of

so much of the taxable excess as does not exceed $175,000.        Sec.

55(b)(1)(A)(i).   The taxable excess is that amount by which the

alternative minimum taxable income (AMTI) exceeds the exemption

amount.   Sec. 55(b)(1)(A)(ii).    The exemption amount for

individuals filing singly, as in petitioner's case, is $33,750.

Sec. 55(d).

     AMTI equals the taxpayer's taxable income for the year

determined with the adjustments provided in section 56.        Sec.

55(b)(2).   In calculating AMTI, no deduction is allowed for

miscellaneous itemized deductions or for State and local taxes

paid, unless such amounts are deductible in determining adjusted

gross income.   Sec. 56(b)(1).    Also, no deduction for the

personal exemption under section 151 is allowed.       Sec.

56(b)(1)(E).    Petitioner presented no evidence that the AMT was

incorrectly calculated.   His sole argument, noted above, is that

the AMT effectively deprives him of the benefit of his itemized

deductions, all of which were accepted by respondent.

     The determination of a taxpayer's AMT requires a

recomputation of taxable income, leading to a new tax base,

alternative minimum taxable income.       Sec. 55(b)(2).   In making

the recomputation, certain (but not all) itemized deductions are

not allowed, as well as the personal exemption.       In particular,

as relates to petitioner, miscellaneous itemized deductions are
                                 - 5 -


not allowed in the computation of alternative minimum taxable

income.   Sec. 56(b)(1)(A)(i).   The sum of these disallowed items

will trigger a liability for the AMT.    In petitioner's situation,

his unreimbursed employee expenses alone total $60,445.32

(compared to his reported wage income of $43,953.68).    Coupled

with the other unallowable expenses, specifically spelled out in

the statute, petitioner's AMT liability ensues.   The AMT serves

to impose a tax whenever the sum of specified percentages of the

excess of alternative minimum taxable income over the applicable

exemption amount exceeds the regular tax for that year.    Sec.

55(a), (b)(1)(A), (C), (d)(1); Huntsberry v. Commissioner, 83

T.C. 742 (1984).   However unfair this statute might seem to

petitioner, the Court must apply the law as written.    As this

Court noted in Hays Corp. v. Commissioner, 40 T.C. 436, 443

(1963), affd. 331 F.2d 422 (7th Cir. 1964):   "The proper place

for a consideration of petitioner's complaint is the halls of

Congress, not here."   Respondent, therefore, is sustained on this

issue.

     Petitioner argues that he should not be liable for interest

on the deficiency, in effect, seeking an abatement of interest.

When petitioner filed his return, he reported a zero tax

liability and claimed a refund of $10,349.41 from tax

withholdings.   He argues that he should not be liable for

interest on tax he did not know that he owed.
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     Section 6404(e)(2) provides:


     The Secretary shall abate the assessment of all interest on
     any erroneous refund under section 6602 until the date
     demand for repayment is made, unless–-(A) the taxpayer (or a
     related party) has in any way caused such erroneous refund,
     or (B) such erroneous refund exceeds $50,000.


     Without passing upon the question of whether the refund in

this case constitutes an erroneous refund that was caused by

petitioner's failure to include a computation of the AMT, this

Court has no jurisdiction over an abatement of interest issue

arising under section 6404(e).    As the Court noted in 508 Clinton

St. Corp. v. Commissioner, 89 T.C. 352, 355 (1987):      "Section

6404(e), by its very terms, does not operate until after there

has been an assessment of interest, which has not yet occurred in

this case."   In this case, neither the deficiency nor the

interest on the deficiency has been assessed, nor can any

assessment be made until the decision in this case is entered.

Petitioner may file with respondent an administrative request for

abatement of any interest assessed.      If, in a notice of final

determination, petitioner's request is denied, petitioner may

then petition this Court for a review of that determination.

However, this Court will order an abatement only if it is shown

that the Commissioner abused his discretion in denying the
                                - 7 -


abatement.   Sec. 6404(i);2 Rule 280(b); Krugman v. Commissioner,

112 T.C. 230, 239 (1999).   The Court, therefore, declines to pass

upon the merits of petitioner's claim for an abatement of

interest.    Indeed, this Court has no jurisdiction over this issue

at this time.

     Reviewed and adopted as the report of the Small Tax Case

Division.




                                             Decision will be entered

                                        for respondent.




     2
          Sec. 6404(h) was redesignated sec. 6404(i) by the
Internal Revenue Service Restructuring & Reform Act of 1998, Pub.
L. 105-206, sec. 3309(a), 112 Stat. 745.
