Edwina Diane Campbell v. Commissioner

121 T.C. No. 16UNITED STATES TAX COURT
EDWINA DIANE CAMPBELL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2604-02. Filed November 24, 2003.
By Final Notice of Determination dated Nov. 6,
2001, R determined that P was not entitled to relief
from joint and several liability relating to 1989
because the request was, pursuant to sec. 6015, I.R.C.,
filed more than 2 years after R’s first collection
activity against P. On Feb. 1, 2002, P filed,
pursuant to sec. 6015(e)(1), I.R.C., a petition seeking
review of R’s determination. On Mar. 10, 2003, P
filed a Motion for Partial Summary Judgment and on
Mar. 31, 2003, R filed a Notice of Objection and
Cross-Motion for Summary Judgment. The issue in both
parties’ motions is whether R’s application of P’s
overpayment, relating to 1998, as a credit against P’s
1989 tax liability is, pursuant to sec. 6015, I.R.C., a
collection activity that bars P’s request for relief
relating to 1989.
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Held: R’s offset of P’s overpayment is, pursuant
to sec. 6015, I.R.C., a collection activity.
Held, further, P’s Motion for Partial Summary
Judgment is denied.
Held, further, R’s Cross-Motion for Summary
Judgment is granted. There is no genuine issue as to
whether P is entitled to relief from joint and
several liability relating to 1989 because P’s election
was, pursuant to sec. 6015, I.R.C., filed more than 2
years after R’s first collection activity against P.
Edwina Diane Campbell, pro se.
Erin K. Huss, for respondent.
OPINION
FOLEY, Judge: This matter is before the Court on
Petitioner’s Motion for Partial Summary Judgment and Respondent’s
Notice of Objection and Cross-Motion for Summary Judgment
pursuant to Rule 121.1 The sole issue for decision is whether
respondent’s application of petitioner’s overpayment, relating to
1998, as a credit against petitioner’s 1989 tax liability is,
pursuant to section 6015, a collection action that bars
petitioner’s request for relief from joint and several liability
relating to 1989.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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Background
On May 13, 1999, respondent applied, pursuant to section
6402(a), petitioner’s overpayment, relating to 1998, as a credit
against a portion of petitioner’s 1989 tax liability and sent
petitioner written notification thereof. On July 23, 2001,
petitioner requested, pursuant to section 6015(b), (c), and (f),
relief from joint and several liability relating to her 1989
joint Federal income tax return filed with Alvin L. Campbell.
By Final Notice of Determination dated November 6, 2001,
respondent determined that petitioner was not entitled to relief
from joint and several liability relating to 1989 because the
request was, pursuant to section 6015, filed more than 2 years
after respondent’s first collection activity against petitioner.
On February 1, 2002, petitioner, while residing in Tucson,
Arizona, filed a petition pursuant to section 6015(e)(1) seeking
review of respondent’s determination. Petitioner, on March 10,
2003, filed a Motion for Partial Summary Judgment, accompanied by
a Memorandum of Points and Authorities, and Affidavit in support
thereof. On March 31, 2003, respondent filed a Notice of
Objection and Cross-Motion for Summary Judgment, accompanied by
Declarations, and Memorandum of Law in support thereof.
Petitioner, on April 16, 2003, filed an Opposition to
Respondent’s Cross-Motion for Summary Judgment.
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Discussion
An election pursuant to section 6015(b), (c), or (f) must be
made within 2 years of respondent’s first collection activity
taken after July 22, 1998, against the individual making the
election.2 Internal Revenue Service Restructuring and Reform Act
of 1998, Pub. L. 105-206, sec. 3201(g)(2), 112 Stat. 740; sec.
6015(b)(1)(E), (c)(3)(B); Rev. Proc. 2000-15, sec. 5, 2000-1 C.B.
447, 449.
Petitioner contends that respondent’s offset of her
overpayment is not, pursuant to section 6015, a collection
activity. We disagree. The offset of an overpayment is by its
plain and ordinary meaning a collection activity pursuant to
section 6015. See Perrin v. United States, 444 U.S. 37, 42
(1979) (stating that “A fundamental canon of statutory
construction is that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common
meaning”); Trent v. Commissioner, T.C. Memo. 2002-285 (stating
that nonlevy collection actions include “offsetting overpayments
2
On July 18, 2002, the Commissioner published final
regulations, pursuant to section 6015, that define a collection
activity to include “an offset of an overpayment of the
requesting spouse against a liability under section 6402”. Sec.
1.6015-5(b)(2)(i), Income Tax Regs. These regulations are
applicable to all requests for relief from joint and several
liability filed on or after July 18, 2002, and, thus, not
applicable to petitioner's request, which was filed before that
date. Sec. 1.6015-9, Income Tax Regs.
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from other tax years after the requesting spouse files for
relief”). Because petitioner reported overpayments of tax on her
1998 return, she generally would be entitled to claim a refund.
See sec. 6511(a), (b)(1); Commissioner v. Lundy, 516 U.S. 235,
240 (1996). Pursuant to section 6402(a), however, respondent
used petitioner’s overpayment to partially satisfy her 1989 tax
liability. Thus, respondent engaged, pursuant to section 6015,
in a collection activity against petitioner. Because
petitioner’s election was filed more than 2 years after that
collection activity (i.e., respondent applied the overpayment and
sent petitioner written notification thereof on May 13, 1999, and
on July 23, 2001, petitioner elected relief), there is no genuine
issue as to whether petitioner is entitled to relief from joint
and several liability relating to 1989. See Rule 121(b); Natl.
Indus., Inc. v. Republic Natl. Life Ins. Co., 677 F.2d 1258, 1265
(9th Cir. 1982). Thus, Petitioner’s Motion for Partial Summary
Judgment is denied, and Respondent’s Cross-Motion for Summary
Judgment is granted.
Contentions we have not addressed are irrelevant, moot, or
meritless.
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To reflect the foregoing,
An appropriate order and
decision will be entered.