                  T.C. Summary Opinion 2004-121



                     UNITED STATES TAX COURT



        IVAN N. ERDELYI AND LYDIA ERDELYI, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13595-03S.             Filed September 2, 2004.



     Ivan N. Erdelyi, pro se.

     James N. Beyer, for respondent.


     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.   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 in issue.
                                - 2 -

     Respondent determined a deficiency of $1,341 in petitioners’

2000 Federal income tax.   The issue is whether petitioners are

liable for an alternative minimum tax.      Petitioners resided in

Glenside, Pennsylvania, at the time they filed the petition.

     The facts may be summarized as follows.      Petitioners timely

filed their 2000 Federal income tax return reporting a total tax

liability of $32,335.55.   The return showed tax payments of

$32,129.12 and a balance due of $206.43, which presumably was

remitted when the return was filed.      The computation of the tax

reported included what respondent determined was a mathematical

error of $119.01 in petitioners’ favor, reducing petitioners’

total tax liability to $32,216.54.      The computation of that

liability did not include the so-called alternative minimum tax

(AMT).   See sec. 55.   Respondent informed petitioners that they

were liable for the AMT.   Petitioners filed a Form 6251,

Alternative Minimum Tax--Individuals, on which they reported (and

paid) an additional liability of $1,222.      Subsequently,

respondent sent petitioners a Notice CP12, 2000 Tax Statement,

and mistakenly issued a refund check to petitioners of $1,341.01,

which is the sum of the mathematical error ($119.01) and the AMT

($1,222) amounts.   In the accompanying correspondence there was

no specific identification of the erroneous items giving rise to

the refund.   The statement showed that petitioners’ total tax

payments for the 2000 year were $33,557.55, which is the total of
                                 - 3 -

the tax liability shown on petitioners’ return ($32,335.55) and

the AMT liability ($1,222).    Petitioners negotiated the refund

check.    Subsequently, respondent issued a notice of deficiency to

petitioners determining a deficiency of $1,341 that reflects an

AMT liability of $1,341.    In correspondence between petitioners

and respondent, respondent explained that while respondent

received the AMT payment of $1,222, petitioners also received a

refund of $1,341, and they were still liable for the AMT.

     Petitioners concede for the taxable year 2000 they had an

AMT liability of $1,222.2   As we understand, however, they

contend that they paid that liability, and, therefore, respondent

is precluded from determining the AMT in the notice of

deficiency.    As we further understand, the factual predicate for

this argument is that the correspondence accompanying the refund

check makes no reference to the AMT and the refund may have been

due to other unknown adjustments.    Petitioners do not point to

any other adjustments that could have produced the refund.

Moreover, we note that the amount of the refund is the exact

amount of the mathematical error and the AMT liability.    In sum,

this position is disingenuous.

     Nonetheless, it does appear that an adjustment should be

made.    Respondent determined a deficiency of $1,341.   That amount

appears to include the mathematical error respondent determined


2
    Petitioners do not satisfy the requirements of sec. 7491(a).
                              - 4 -

in petitioners’ favor that respondent does not dispute and for

which petitioners should be given credit.    The deficiency,

therefore, should be the amount of the AMT liability or $1,222.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                           Decision will be entered

                                      for respondent in the amount

                                      of $1,222.
