                        T.C. Memo. 2004-62



                     UNITED STATES TAX COURT



            MARCI L. & CARL C. VOIGT, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13883-01.           Filed March 11, 2004.


     Marci L. and Carl C. Voigt, pro sese.

     Wesley F. McNamara and Thomas J. Travers, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   This case is before us on respondent’s

motion for entry of decision.

                            Background

     The following factual summary is based on the pleadings, the

parties’ admissions, and undisputed allegations in respondent’s

motion for entry of decision.   This factual summary is set forth
                               - 2 -

solely for purposes of deciding respondent’s motion for entry of

decision; it does not constitute findings of fact.

     On their jointly filed 2000 Federal income tax return,

petitioners claimed four dependency exemption deductions, a

$2,396 earned income credit (EIC), and a $225 wage withholding

credit, resulting in a $2,621 claimed refund.   Respondent

remitted $1,725 (plus interest) of petitioners’ claimed refund to

the State of Idaho in satisfaction of petitioner Carl Voigt’s

(petitioner) unpaid child support obligation, pursuant to section

6402(c).1   Petitioners do not dispute this payment to the State

of Idaho.   Respondent also alleges that on May 25, 2001, he paid

the $896 balance (plus interest) of petitioners’ claimed refund

to petitioner Marci Voigt pursuant to an Injured Spouse Claim and

Allocation request (Form 8379) that she filed with respondent.

Petitioners dispute ever receiving this payment.

     By notice of deficiency dated October 12, 2001, respondent

disallowed petitioners’ claimed EIC and two of their claimed

dependency exemption deductions, asserting a $2,910 deficiency.

The parties are now in substantial agreement about the items

reflected in the notice of deficiency:   petitioners concede that

they are not entitled to their claimed EIC; respondent concedes

that petitioners are entitled to the four dependency exemption


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                               - 3 -

deductions they claimed on their 2000 tax return.    The parties

agree that, taking into account only these concessions,

petitioners’ 2000 deficiency is $2,396.    Petitioners contend,

however, that their tax liability should be reduced to reflect

what they allege to be respondent’s nonpayment of the $896

balance of their 2000 claimed refund.

     On June 23, 2003, this case was called for trial from the

calendar for the regularly scheduled session of the U.S. Tax

Court in Boise, Idaho.   Counsel for respondent and petitioner

made their appearances and were heard.    Counsel for respondent

stated, and petitioner agreed, that “the parties have reached an

agreement as to the amount of the deficiency due” but that

petitioner “wishes still to contest the * * * allocation of

payments from the refund.”2   Counsel for respondent moved the

Court to deny petitioner’s claim for lack of jurisdiction.    The

Court ordered respondent to file a written motion within 7 days.

Respondent never filed the written motion as ordered by the

Court.   Instead, on July 8, 2003, in a conference call with the

parties and the Court, respondent’s counsel withdrew his oral


     2
       Petitioner Carl C. Voigt (petitioner) clarified that he
was contesting only whether respondent ever paid the balance of
petitioners’ claimed refund that allegedly remained after
respondent made payment to the State of Idaho to offset
petitioner’s child support obligation, pursuant to sec. 6402(c).
Petitioner stated with regard to the sec. 6402(c) offset: “I’ve
done my research on that. The State of Idaho does show a credit
to previous owed child support for the son listed, sent to them.
That’s not in contention.”
                                 - 4 -

jurisdictional motion.    On July 14, 2003, respondent filed a

motion for entry of decision.    By Order dated July 15, 2003, the

Court directed that petitioners could respond to respondent’s

motion on or before August 14, 2003.      The Court has received no

response from petitioners.

                             Discussion

A.   Jurisdiction

      The Tax Court is a court of limited jurisdiction; we may

exercise our jurisdiction only to the extent authorized by

statute.    Sec. 7442; Commissioner v. Gooch Milling & Elevator

Co., 320 U.S. 418, 420 (1943).    By statute, this Court is

authorized to redetermine the amount of a deficiency for a

particular taxable period as to which the Commissioner issued a

notice of deficiency and the taxpayer petitioned the Court for

review.    See secs. 6212, 6213, and 6214.    This Court also has

jurisdiction to determine the amount of any overpayment a

taxpayer might have made for a year that is properly before the

Court on a petition to redetermine a deficiency.     Sec.

6512(b)(1).    If the Court determines that there is such

overpayment, then the “amount of such overpayment * * * shall,

when the decision of the Tax Court has become final, be credited

or refunded to the taxpayer.”     Id.

      Petitioners received a notice of deficiency with respect to

their 2000 tax year and duly petitioned this Court to redetermine
                                 - 5 -

the deficiency.    Accordingly, this Court has jurisdiction to

redetermine the deficiency and to determine the amount of any

overpayment.    See secs. 6214(a), 6512(b)(1), 7442.   As explained

more fully below, our jurisdiction extends to the entire subject

matter of petitioners’ correct tax for their 2000 tax year and

encompasses their contention that they never received part of

their claimed 2000 refund.    See Naftel v. Commissioner, 85 T.C.

527, 532-535 (1985).

B.   Adequacy of the Pleadings

      In his motion for entry of decision, respondent contends

that petitioners did not plead the disputed refund issue and

accordingly “should not be allowed to raise new issues at the

calendar call”.    As stated in Rule 31(a):   “The purpose of the

pleadings is to give the parties and the Court fair notice of the

matters in controversy and the basis for their respective

positions.”    It is evident that respondent had fair notice of

petitioners’ contention regarding the disputed refund:

respondent’s counsel addressed the issue in both his June 5,

2003, trial memorandum, which he submitted to the Court about 2

weeks before the scheduled trial session, and in a conference

call with the parties and the Court before the scheduled trial

session.   In neither instance did respondent complain about

petitioners’ failure to plead the disputed refund issue.

Moreover, in making his original (withdrawn) jurisdictional
                                 - 6 -

motion at the calendar call, respondent raised no objection as to

the adequacy of the pleadings.    Having brought the disputed

refund issue to the Court’s attention both before the scheduled

trial session and at calendar call, and having orally moved the

Court to consider the issue (albeit in a motion to dismiss for

lack of jurisdiction), respondent is scarcely in a position to

complain now that the issue is not properly before us or that he

would be surprised or prejudiced by our considering it.    Taking

into account petitioners’ status as pro se litigants and seeking

to accomplish substantial justice, we deem the issue of the

disputed refund to have been raised with respondent’s implied

consent; accordingly, we treat this issue as if it had been

raised in the pleadings.   Cf. Rule 41(b); Wilson v. Commissioner,

T.C. Memo. 1994-454 n.1; Swope v. Commissioner, T.C. Memo. 1990-

82 n.6.

C.   Might the Disputed Refund Check Affect the Amount of the
     Deficiency or Give Rise to an Overpayment Claim?

     On the merits of his motion for entry of decision,

respondent contends:

     No matter whether the [disputed refund] check was
     received or not, the amount of the deficiency in this
     case, as defined by I.R.C. § 6211, is unaffected. In
     addition, given the amount of the agreed deficiency in
     this case ($2,396.00), the amount of the check
     ($896.00) is too small to produce an overpayment.
     Thus, although the payment of the check is relevant to
     a calculation of the balance due from petitioners, it
     is not relevant to the calculation of the deficiency
     and is too small to raise any chance of an overpayment.
                                  - 7 -

       Receipt is therefore immaterial to the issues before
       the Court.

       As explained more fully below, we agree that petitioners’

claim with respect to the disputed refund check does not decrease

the amount of the otherwise agreed-upon deficiency and cannot

give rise to an overpayment in the present circumstances.

       1.   No Effect on the Agreed-Upon Deficiency

       The disputed refund check is immaterial to the calculation

of petitioners’ deficiency.     “Deficiency” is a term of art

defined in section 6211.     Generally speaking and as relevant

herein, a deficiency is simply the amount by which the “tax

imposed” under the law exceeds the amount of tax shown on the

return.     Sec. 6211(a).   The determination of a deficiency under

section 6211(a) does not take into account payment or nonpayment

of a claimed EIC.     See Wilson v. Commissioner, T.C. Memo. 2001-

139.    Moreover, the amount of a deficiency is determined without

regard to the amount of taxes withheld on a taxpayer’s income.

See sec. 6211(a) and (b)(1); Keefe v. Commissioner, 15 T.C. 947,

955-956 (1950).

       In the instant case, the “tax imposed” on petitioners’ 2000

income is zero.     The tax shown by petitioners on their 2000 tax

return was negative $2,396; i.e., the amount of EIC they showed

on their 2000 tax return and which they now concede is not
                                 - 8 -

allowable.3   See sec. 6211(b)(4).   Accordingly, whether or not

petitioners ever received the disputed refund check, the

deficiency is $2,396; i.e., the excess of $0 over negative

$2,396.

     2.   No Overpayment Claim

     The amount of the disputed refund check is too small to

create an overpayment.   The term “overpayment” has been

interpreted to mean “any payment in excess of that which is

properly due.”   Jones v. Liberty Glass Co., 332 U.S. 524, 531

(1947); see also United States v. Dalm, 494 U.S. 596, 609 n.6

(1990) (“The commonsense interpretation is that a tax is overpaid

when a taxpayer pays more than is owed, for whatever reason or no

reason at all.”).   As relevant here, section 6401(b) provides

that if the amount “allowable” as refundable credits, such as the

wage withholding credit under section 31 and the EIC under

section 32, exceeds the “tax imposed”, the excess “shall be

considered an overpayment.”

     It is undisputed that for the year at issue, petitioners

have an allowable section 31 wage withholding credit of $225


     3
       Pursuant to sec. 6211(b)(4), as relevant herein, any
excess of the amount of earned income credit (EIC) claimed by the
taxpayer over the amount of tax due shown on the return without
regard to the EIC is taken into account as a negative amount of
tax. On their 2000 return, petitioners claimed a $2,396 EIC.
The amount of tax due shown on the return, without regard to the
EIC, was zero. Accordingly, under sec. 6211(b)(4), the $2,396
excess of the former amount over the latter amount is treated as
a negative amount of tax.
                                   - 9 -

(indeed, respondent contends that he has already paid out

petitioners’ claimed overpayment, which includes this $225

amount).4      As previously noted, the tax imposed on petitioners’

2000 income is zero.       Accordingly, if we were to find that

respondent never paid out the part of petitioners’ claimed

overpayment attributable to their $225 wage withholding credit,

then, pursuant to section 6401(b), $225 (the excess of $225 over

zero) would be considered an overpayment, at least viewed in

isolation.

       Our analysis, however, does not end there, for ultimately,

in determining whether petitioners have made an overpayment, the

question is not how this $225 item should be viewed in isolation

but whether petitioners have made “payment in excess of that

which is properly due.”       Jones v. Liberty Glass Co., supra at

531.       The answer to that question is clearly no.   Although the

tax imposed on petitioners’ 2000 income is zero, there remains an

agreed deficiency of $2,396, due to their erroneously claiming

the EIC on their return.       Of that sum, it is undisputed that

$1,725 has been refunded to them or for their benefit.        If we

were to assume, as petitioners claim, that the $896 disputed

refund check went astray and that petitioners’ $225 wage


       4
       Inasmuch as petitioners concede that they were      not
entitled to the EIC claimed on their 2000 tax return,      the EIC is
not an “allowable” credit and so is not considered in      determining
the existence or amount of an overpayment pursuant to      sec.
6401(b).
                                - 10 -

withholding credit was included in that check, then petitioners

have yet to pay the IRS (and the IRS would be entitled to collect

from them) $1,500 ($1,725 minus $225) of the $2,396 deficiency

(plus interest).    In short, even if petitioners’ allegations

about their nonreceipt of the disputed refund check were assumed

to be true, there would be no “payment in excess of that which is

properly due.”     Jones v. Liberty Glass Co., supra at 531.

Accordingly, petitioners are not in a position to invoke our

overpayment jurisdiction.

     In conclusion, because petitioners’ claim with respect to

the disputed refund check cannot affect the amount of the

deficiency otherwise agreed upon and cannot in these

circumstances give rise to a claim for an overpayment, there

remains no material issue of fact relevant to disposing of this

case.    Accordingly, we must grant respondent’s motion for entry

of decision.5


                                      An order granting respondent’s

                                 motion will be entered.




     5
       Although we are unable to address petitioners’ claim
regarding the disputed refund check, they are not without a
remedy. They may pay the assessed deficiency, file a claim for
refund with the Internal Revenue Service, and if the claim is
denied, sue for a refund in the Federal District Court or the
Court of Federal Claims.
