Greene-Thapedi v. Comm'r

126 T.C. No. 1, 126 T.C. 1, 2006 U.S. Tax Ct. LEXIS 1

• Court: United States Tax Court
• Decided: January 12, 2006
• Docket: No. 7940-01L
• Status: Published

Opinions

OPINION

Thornton, Judge:

Pursuant to section 6330(d), petitioner seeks review of respondent’s determination to proceed with a proposed levy.¹

Background

When she petitioned this Court, petitioner resided in Chicago, Illinois.

Stipulated Decision for 1992 Taxable Year

On June 5, 1997, in a prior deficiency proceeding involving petitioner’s 1992 taxable year, this Court entered a stipulated decision that petitioner had a $10,195 deficiency in income tax due but owed no additions to tax or penalties. The parties stipulated that interest would be assessed as provided by law and that effective upon entry of the decision by the Court, petitioner waived the restrictions contained in section 6213(a) prohibiting assessment and collection of the deficiency (plus statutory interest) until the decision of the Tax Court becomes final.

Collection Action on 1992 Liability

Respondent contends that on December 19, 1997, petitioner’s 1992 deficiency was assessed and petitioner was sent a notice of balance due (including accrued interest) of $14,514.53. Petitioner disputes that any notice of balance due was ever sent. In áñy event, petitioner made no payment on her 1992 deficiency at that time.

On July 3, 2000, respondent sent petitioner a Form CP 504, “Urgent!! We intend to levy on certain assets. Please respond NOW.” (Form CP 504), for taxable year 1992, indicating that she owed $23,805.53.² By checks dated July 18, 2000, petitioner paid respondent $14,514.53 on her 1992 account; i.e., the amount of her balance as of December 19, 1997.³ Contemporaneously, petitioner submitted to respondent a Form 12153, Request for a Collection Due Process Hearing, dated July 18, 2000, with respect to her 1992 tax year.⁴ On the Form 12153, petitioner complained that the balance shown on respondent’s Form CP 504 included erroneous penalties and interest accruals.

On January 9, 2001, respondent issued petitioner a Final Notice — Notice of Intent to Levy and Notice of Your Right to a Hearing (the Final Notice) with respect to her 1992 income tax liabilities, showing an assessed balance of $4,992.70, and stating that this amount did not include accrued penalties and interest.⁵ Petitioner submitted another Form 12153, dated January 17, 2001, again requesting a hearing with respect to her 1992 taxable year and stating: “I do not owe the money. Notice improper”.

Appeals Office Hearing and Notice of Determination

The Appeals Office hearing consisted of an exchange of correspondence and telephone conversations. During the hearing, petitioner contended that she was not liable for any interest accruals between December 19, 1997, and July 3, 2000, on the ground that she had not received the December 19, 1997, notice of balance due and was not notified of any balance due until July 3, 2000. By Notice of Determination dated May 22, 2001, respondent’s Appeals Office sustained the proposed collection action.⁶

Tax Court Petition

On June 22, 2001, petitioner filed her petition in this Court.⁷ The petition disputed, among other things, interest and penalties with respect to her 1992 income tax liability and requested this Court to order respondent to credit or refund what she alleged to be her tax overpayment for 1992. The petition also alleged that petitioner had failed to receive a meaningful Appeals Office hearing as required by section 6330.

Respondent’s Motion for Partial Summary Judgment

On October 17, 2002, respondent filed a motion for partial summary judgment with respect to the issue of whether petitioner was afforded the opportunity for an Appeals Office administrative hearing under sections 6320 and 6330. By Order dated February 25, 2003, this Court granted respondent’s motion for partial summary judgment, holding that “petitioner was provided with a meaningful opportunity for a collection due process hearing in this case.”

Petitioner’s Motion To Add 1999 Taxable Year to This Proceeding

Respondent’s just-described motion for partial summary judgment indicated, among other things, that after the filing of the petition, respondent had offset a $10,633 overpayment from petitioner’s 1999 income tax account against petitioner’s 1992 tax liability, resulting in full payment of petitioner’s 1992 liability.⁸ On December 3, 2002, petitioner filed a motion for leave to amend her petition to add taxable year 1999 to this proceeding. In her motion, petitioner stated that she had been “caught by surprise” by the information in respondent’s motion that respondent had offset her 1999 overpayment against her alleged 1992 tax liability. By Order dated January 30, 2003, this Court denied petitioner’s motion for leave to amend her petition. The Order stated:

Respondent contends, and we agree, that petitioner is not permitted to dispute in this collection review proceeding respondent’s application of an overpayment to offset all or part of the tax due for taxable year 1992 although the latter year is otherwise subject to review under section 6330. See, e.g., Trent v. Commissioner, T.C. Memo. 2002-285.

District Court Refund Suit

Petitioner then filed a refund suit in the U.S. District Court, Northern District of Illinois, Eastern Division, claiming a refund of her 1999 overpayment. The United States moved to dismiss on the ground that as a matter of law petitioner has no claim for a 1999 overpayment because the credit against the 1999 tax year no longer existed, having been applied against petitioner’s outstanding 1992 tax liability pursuant to section 6402(a). By memorandum opinion and order entered December 11, 2003, the District Court denied the Government’s motion to dismiss, on the ground that it could not determine as a matter of law that petitioner’s 1999 overpayment did not exceed her 1992 liability, so that the Government’s section 6402(a) duty to “refund any balance to such person” would not arise in the District Court case. The District Court stated:

Finally, the Court is mindful that although the Tax Court does not have concurrent jurisdiction over the issues in the present suit, which relates to the 1999 tax year, see Statland v. United States, 178 F.3d 465, 470-71 (7th Cir. 1999), the Tax Court proceedings related to Plaintiffs 1992 tax liability will likely resolve certain facts necessary to the resolution of the present litigation. Therefore, this matter is stayed pending the outcome of the Tax Court proceedings.

Amended Petition

Petitioner subsequently filed an unopposed motion for leave to file an amended petition in these Tax Court proceedings. In her amended petition, petitioner contended that the Appeals Office erred in determining that the proposed levy with respect to her 1992 taxable year should proceed. She also challenged her liability for the 1992 deficiency and associated interest on the ground that respondent had failed to make timely notice and demand for payment.

Discussion

This Court previously dismissed this case as to petitioner’s taxable years 1991 and 1997, leaving only 1992 at issue. Sometime after the petition was filed, respondent applied petitioner’s 1999 overpayment to offset her 1992 tax liability. Consequently, respondent no longer claims any amount to be due and owing from petitioner with respect to her 1992 income tax account. On supplemental brief respondent states that he “intends to take no further collection action with respect to * * * [petitioner’s] 1992 tax liability”. Accordingly, respondent contends that this case should be dismissed as moot.⁹ For the reasons described below, we agree.

The Tax Court is a court of limited jurisdiction; we may exercise jurisdiction only to the extent expressly authorized by Congress. See, e.g., Henry Randolph Consulting v. Commissioner, 112 T.C. 1, 4 (1999). Our jurisdiction in this case is predicated upon section 6330(d)(1)(A), which gives the Tax Court jurisdiction “with respect to such matter” as is covered by the final determination in a requested hearing before the Appeals Office. See Davis v. Commissioner, 115 T.C. 35, 37 (2000). “Thus, our jurisdiction is defined by the scope of the determination” that the Appeals officer is required to make. Freije v. Commissioner, 125 T.C. 14, 25 (2005).

The Appeals officer’s written determination is expected to address “the issues presented by the taxpayer and considered at the hearing.” H. Conf. Rept. 105-599, at 266 (1998), 1998-3 C.B. 747, 1020. At the hearing, the Appeals officer is required to verify that “the requirements of any applicable law or administrative procedure have been met.” Sec. 6330(c)(1); see sec. 6330(c)(3)(A).¹⁰ The Appeals officer is also required to address whether the proposed collection action balances the need for efficient tax collection with the legitimate concern that any collection action be no more intrusive than necessary. Sec. 6330(c)(3)(C). The taxpayer may raise “any relevant issue relating to the unpaid tax or the proposed levy”. Sec. 6330(c)(2)(A). The taxpayer is also entitled to challenge “the existence or amount of the underlying tax liability” if he or she “did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” Sec. 6330(c)(2)(B).

In Chocallo v. Commissioner, T.C. Memo. 2004-152, the Commissioner had acknowledged that the tax liability he had been trying to collect by levy had been improperly assessed, had refunded previously collected amounts with interest, and had agreed that there was no unpaid tax liability upon which a levy could be based. Accordingly, this Court dismissed the case as moot. The Court stated: “Our jurisdiction under section 6330 is generally limited to reviewing whether a proposed levy action is proper.” Id. The Court declined to entertain the taxpayer’s motion for sanctions against the Government, reasoning that the taxpayer “has received all the relief to which she is entitled under section 6330”. Id. Similarly, in Gerakios v. Commissioner, T.C. Memo. 2004-203, we dismissed the collection review proceeding as moot where the parties agreed that there was no unpaid liability upon which a lien or levy could be based after the taxpayer had paid the liability in full.

In the instant case, as in Chocallo and Gerakios, respondent acknowledges that there is no unpaid liability for the determination year upon which a levy could be based and has stated that he is no longer pursuing the proposed levy. Accordingly, in this case, as in Chocallo and Gerakios, the proposed levy for petitioner’s 1992 tax liability is moot.

In the instant case, unlike in Chocallo, respondent does not concede that the proposed levy was improperly made, nor has respondent returned to petitioner the disputed amounts that have been applied to satisfy petitioner’s 1992 account. These circumstances, however, do not dictate a different result in this case. In this case, unlike in Chocallo, respondent has collected no amounts by levy. Respondent’s offset of petitioner’s 1999 overpayment against her 1992 tax account was pursuant to section 6402(a).¹¹ An offset under section 6402 does not constitute a levy action and accordingly is not a collection action that is subject to review in this section 6330 proceeding. Bullock v. Commissioner, T.C. Memo. 2003-5; see Boyd v. Commissioner, 124 T.C. 296, 300 (2005); sec. 301.6330-1(g)(2), Q&A-G3, Proced. & Admin. Regs, (an offset is a nonlevy collection action that the Internal Revenue Service may take during the suspension period provided in section 6330(e)(1)).

In the instant case, unlike in Chocallo v. Commissioner, supra, and Gerakios v. Commissioner, supra, there remain unresolved petitioner’s claims for a refund. In her amended petition, petitioner contends that she is not liable for the 1992 deficiency and associated interest on the ground that respondent failed to assess the deficiency and mail her a timely notice and demand to pay; alternatively, she contends that pursuant to section 6601(c) she is not liable for interest accruals for the period from July 5, 1997 (when she claims respondent was required to make notice and demand for payment of her 1992 deficiency), to July 3, 2000 (when respondent sent her Form CP 504 requesting payment). On brief, petitioner contends that she is entitled to a refund for:

all compound interest she paid for the period April 15, 1993 to July 18, 2000, all interest she paid for periods during which interest was suspended or [sic] July 5, 1997 to July 3, 2000; and for all sums that she paid for penalties and additions and interest on such, that were disallowed by the June 5, 1997 Tax Court decision.

Petitioner’s claim for a refund arises, if at all, under section 6330(c)(2), as an outgrowth of her challenge to the existence and amount of her underlying 1992 tax liability.¹² Pursuant to section 6330(c)(2), however, whatever right petitioner may have to challenge the existence and amount of her underlying tax liability in this proceeding arises only in connection with her challenge to the proposed collection action. Inasmuch as the proposed levy is moot, petitioner has no independent basis to challenge the existence or amount of her underlying tax liability in this proceeding.

More fundamentally, section 6330 does not expressly give this Court jurisdiction to determine an overpayment or to order a refund or credit of taxes paid. This Court has not previously addressed the question as to whether such jurisdiction arises implicitly in collection review proceedings commenced in this Court pursuant to section 6330.¹³ The legislative history of this Court’s overpayment and refund jurisdiction in deficiency proceedings is relevant in addressing this question.¹⁴

When our predecessor, the Board of Tax Appeals (the Board) was created in 1924, it lacked jurisdiction to determine an overpayment for the year in question in a deficiency proceeding.¹⁵ Cf. Dickerman & Englis, Inc. v. Commissioner, 5 B.T.A. 633, 634-635 (1926). The Revenue Act of 1926, ch. 27, 44 Stat. 9, established the Board’s jurisdiction to determine an overpayment in a deficiency proceeding. The Board still had no jurisdiction, however, to order payment of any resulting refund. Id. at 635-636; see United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 542 (1937). That situation persisted until 1988 when Congress enacted section 6512(b), giving the Tax Court jurisdiction to order the refund of overpayments determined in deficiency proceedings.¹⁶ Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100-647, sec. 6244, 102 Stat. 3750. This legislative history makes clear that Congress believed that absent this legislative change the Tax Court lacked authority to order the refund of any overpayment.¹⁷ In this same legislation, the Senate proposed to expand the Tax Court’s refund jurisdiction by granting the Tax Court jurisdiction over tax refund actions where the taxpayer already had a related deficiency proceeding pending in Tax Court. H. Conf. Rept. 100-1104 (Vol. II), at 234 (1988), 1988-3 C.B. 473, 724. This proposal was rejected in conference. See id. In describing “Present Law” as related to this proposal, the conference report stated: “The Tax Court has no jurisdiction to determine whether a taxpayer has made an overpayment except in the context of a deficiency proceeding.”¹⁸ Id. at 233, 1988-3 C.B. at 723. In the Taxpayer Relief Act of 1997, Pub. L. 105-34, sec. 1451, 111 Stat. 1054, Congress enacted section 6512(b)(4), which clarifies that in determining an overpayment pursuant to section 6512(b), the Tax Court has no jurisdiction to “restrain or review any credit or reduction made by the Secretary under section 6402.” See H. Conf. Rept. 105-220, at 732 (1997), 1997-4 C.B. (Vol. 2) 1457, 2202 (stating that this amendment “clarifies that the Tax Court does not have jurisdiction over the validity or merits of the credits or offsets that reduce or eliminate the refund to which the taxpayer was otherwise entitled.”).

In sum, given that explicit statutory authority was required before this Court acquired jurisdiction to determine overpayments in deficiency cases, and given that additional explicit statutory authority was required before this Court acquired, decades later, jurisdiction to enforce such an overpayment, and given that Congress later clarified legislatively that this overpayment jurisdiction did not extend to reviewing credits under section 6402 (such as the credit of petitioner’s 1999 overpayment against her 1992 tax liability), we do not believe we should assume, without explicit statutory authority, jurisdiction either to determine an overpayment or to order a refund or credit of taxes paid in a section 6330 collection proceeding.¹⁹ As discussed below, this conclusion is reinforced by the absence in section 6330 of the traditional statutory limitations on the allowance of refunds or credits of taxes.

Section 6511 contains detailed limitations on the allowance of tax credits or refunds generally. Section 6511(a) sets out the requisite time periods for filing a claim for credit or refund.²⁰ Section 6511(b)(2) limits the amount of tax to be refunded to two so-called look-back periods: (1) For claims filed within 3 years of filing the return, the refund is generally limited to the portion of the tax paid within the 3 years immediately before the claim was filed; (2) for claims not filed within 3 years of filing the return, the refund is generally limited to the portion of the tax paid during the 2 years immediately before the claim was filed. See Commissioner v. Lundy, 516 U.S. 235, 240 (1996). Section 6512(b)(3) generally incorporates these rules where taxpayers who challenge deficiency notices in Tax Court are found to be entitled to refunds.

By contrast, section 6330 incorporates no such limitations on the allowance of tax refunds or credits. There is no indication that in enacting section 6330, Congress intended, sub silentio, to provide taxpayers a back-door route to tax refunds and credits free of these longstanding and well-established limitations. Nor, in light of the detailed and comprehensive codification of such limitations in sections 6511 and 6512(b), do we believe that Congress would have intended that such limitations should arise by inference in section 6330 with respect to claims for tax refunds or credits as to which our jurisdiction would similarly arise under section 6330, if at all, only by inference. Consequently, we are led to the conclusion that Congress did not intend section 6330 to provide for the allowance of tax refunds and credits.

Petitioner’s claim for a refund is based at least partly on her claim that she does not owe at least some of the assessed interest, on the ground that respondent failed to make timely notice and demand for payment of her 1992 deficiency. This Court has held that in an appeal brought under section 6330(d), where the existence and amount of the taxpayer’s underlying tax liability is properly at issue, our jurisdiction allows us to review the taxpayer’s claim for interest abatement pursuant to section 6404, see Katz v. Commissioner, 115 T.C. 329, 340-341 (2000), as well as to redetermine the correct amount of the taxpayer’s interest liability where the claim falls outside of section 6404, see Urbano v. Commissioner, 122 T.C. 384, 389-393 (2004). In interest-abatement proceedings brought under section 6404(h), this Court has held that we have jurisdiction to determine the amount of an overpayment pursuant to section 6404(h)(2)(B), which states: “Rules similar to the rules of section 6512(b) shall apply for purposes of this subsection.” See Goettee v. Commissioner, T.C. Memo. 2003-43.

We do not believe that petitioner’s refund claim is properly construed as being predicated on a claim for interest abatement pursuant to section 6404.²¹ But even if petitioner’s claim were so construed, that circumstance would not affect our conclusion that we lack jurisdiction under section 6330 to determine any overpayment or to order a refund or credit. Unlike section 6404(h), section 6330 contains no cross-reference to the rules of section 6512(b), nor does section 6330 cross-reference section 6404(h)(2)(B), which makes section 6512(b) type rules applicable only “for purposes of this subsection” (i.e., subsection (h) of section 6404). Section 6404(h)(2)(B) illustrates that Congress has acted infrequently to extend this Court’s overpayment jurisdiction, and then only in a deliberate and circumscribed manner. These considerations buttress our conclusion that we should not assume overpayment jurisdiction in a section 6330(d) proceeding absent express statutory provision.

We are mindful that the District Court has stayed petitioner’s refund case with the expectation that this Court would resolve certain relevant facts in this proceeding. Because we lack jurisdiction in this proceeding to determine petitioner’s 1992 overpayment or to order a refund or credit of petitioner’s 1992 taxes, and because the proposed collection action for 1992 is now moot, no factual issue remains which would affect the disposition of the case before us. For us to undertake to resolve issues that would not affect the disposition of this case would, at best, amount to rendering an advisory opinion. This we decline to do. Cf. LTV Corp. v. Commissioner, 64 T.C. 589, 595 (1975) (declining to provide an advisory opinion as to the amount of net operating losses (nols) in post-deficiency years in a deficiency case in which respondent had conceded NOLs sufficient to eliminate any deficiency for the year at issue).

For the reasons discussed, we shall dismiss this case as moot.

An appropriate order of dismissal will be entered.

Reviewed by the Court.

Gerber, Cohen, Wells, Halpern, Chiechi, Laro, Gale, Haines, Goeke, Kroupa, and Holmes, JJ., agree with this majority opinion. Foley, J., concurs in result only.

1 All section references are to the Internal Revenue Code, as amended.

2 The Form CP 504 indicated that the $23,805.53 balance included a "Penalty” of $2,622.56 and “Interest” of $4,298.30. The $4,298.30 of “Interest” was apparently in addition to other amounts of previously accrued interest.

3 One of the checks was for $10,195; the memo line on the check states that it is for “Additional Tax 1992 Under Protest”. The other check was for $4,319.53; the memo line states that this amount is for "1992 Interest Assessment Under Protest”. A transcript of petitioner’s account attached to the Form CP 504 sent to petitioner on July 3, 2000, showed the $4,319.53 amount as an interest assessment that was made on Dec. 19, 1997.

4 The Appeals Office apparently treated this request as premature, on the ground that petitioner had not yet received any notice of Federal tax lien filing, final notice of intent to levy, or notice of jeopardy levy with respect to taxable year 1992.

5 The record does not otherwise conclusively establish how the $4,992.70 assessed balance was calculated.

6 The Notice of Determination also sustained a separate collection action for petitioner’s 1997 taxable year. As explained in the following note, that matter is now moot.

7 The original petition included taxable years 1991, 1992, and 1997. By Order dated Sept. 13, 2001, this Court granted respondent’s motion to dismiss for lack of jurisdiction as to taxable year 1991 on the ground that petitioner had not been issued a notice of determination with respect to that year. By Order dated Feb. 24, 2003, this Court dismissed the collection action as to taxable year 1997 as being moot, on the ground that respondent had conceded that the disputed 1997 tax liability had not been assessed and that respondent had erred in issuing a final notice of intent to levy with respect to the 1997 taxable year.

8 The record does not conclusively establish when the offset occurred. On brief, respondent proposes as a finding of fact that the offset occurred on or about May 19, 2001, “subsequent to the filing of the petition in this case.” (In fact, the original petition was filed on June 22, 2001.) This proposed finding of fact appears inconsistent with respondent’s responses to petitioner’s interrogatories, in which respondent stated that the offset occurred “during the week beginning October 6, 2002.”

9 Neither party originally argued that this case was moot as to petitioner’s taxable year 1992. Mootness, however, “is a jurisdictional question, since article III, section 2 of the Constitution limits jurisdiction of the Federal judicial system to ‘cases’ and ‘controversies.’ ” Hefti v. Commissioner, 97 T.C. 180, 191 (1991), affd. 983 F.2d 868 (8th Cir. 1993). “The failure to question our jurisdiction is not a waiver of the right to do so, for if we lack jurisdiction over an issue, we do not have the power to decide it.” Urbano v. Commissioner, 122 T.C. 384, 389 (2004). Accordingly, the Court has an independent obligation to consider mootness sua sponte. North Carolina v. Rice, 404 U.S. 244, 246 (1971). For this reason, the Court directed the parties to file supplemental briefs addressing the issue of whether this case should be dismissed as moot.

10 Although this language is somewhat open ended, the legislative history clarifies that this required verification pertains to legal and administrative requirements “for the proposed collection action”. H. Conf. Rept. 105-599, at 264 (1998), 1998-3 C.B. 747, 1018.

11 In her amended petition, petitioner requested that we find that respondent was not authorized to credit her $10,633 income tax overpayment for 1999 against her 1992 account. Petitioner has not pursued this argument on brief, and we deem her to have abandoned it. See Nicklaus v. Commissioner, 117 T.C. 117, 120 n.4 (2001) (concluding that taxpayers abandoned arguments and contentions asserted prior to the filing of their brief where they failed to advance those arguments and contentions on brief). Even if we had not concluded that petitioner had abandoned this argument, however, we would nevertheless conclude, for the reasons discussed supra, that we lack authority to consider this matter pursuant to sec. 6330.

12 The right to challenge the existence and amount of underlying tax liability encompasses the right to challenge the existence and amount of disputed interest thereon. Urbano v. Commissioner, 122 T.C. 384, 389-390 (2004).

13 This Court has exercised its inherent equitable powers to order the Commissioner to return to the taxpayer property that was improperly levied upon, see Chocallo v. Commissioner, T.C. Memo. 2004-152, and to require the Commissioner to provide to the taxpayer a credit with respect to property that the Commissioner had seized pursuant to a jeopardy levy but had improperly refused to sell in compliance with the taxpayer’s request made pursuant to sec. 6335(f), see Zapara v. Commissioner, 124 T.C. 223 (2005).

14 By “deficiency proceeding” we mean a proceeding filed in the Tax Court pursuant to sec. 6213 challenging a notice of deficiency issued pursuant to sec. 6212(a).

15 But cf. Commissioner v. Gooch Milling & Elevator Co., 320 U.S. 418, 421 n.7 (1943) (noting the Board’s assumption of jurisdiction, and the legislative revocation thereof, to determine an overpayment for a nondeficiency year in unique circumstances where the overpayment was netted against the deficiency).

16 Sec. 6512(b)(2) provides:

Jurisdiction to enforce. If, after 120 days after a decision of the Tax Court has become final, the Secretary has failed to refund the overpayment determined by the Tax Court, together with the interest thereon as provided in subchapter B of chapter 67, then the Tax Court, upon motion by the taxpayer, shall have jurisdiction to order the refund of such overpayment and interest. An order of the Tax Court disposing of a motion under this paragraph shall be reviewable in the same manner as a decision of the Tax Court, but only with respect to the matters determined in such order.

Sec. 6512(b)(2), read in isolation, does not expressly confine to deficiency proceedings the Tax Court’s jurisdiction to enforce overpayments; read in the context of sec. 6512 as a whole, however, that is clearly the effect. Sec. 6512(a) describes limitations on claiming a refund or credit when a petition is filed in the Tax Court in response to a “notice of deficiency”. Sec. 6512(b)(1) confers on the Tax Court jurisdiction to determine an overpayment “if the Tax Court finds that there is no deficiency and further finds that the taxpayer has made an overpayment * * * or finds that there is a deficiency but that the taxpayer has made an overpayment”. Pursuant to sec. 6512(b)(3), no credit or refund will be allowed unless the Tax Court determines as part of its decision that (among other things) the tax was paid “after the mailing of the notice of deficiency’. Similarly, as more fully described in the following note, the legislative history indicates that enactment of sec. 6512(b)(2) was in response to treatment under then-present law of “a refund of a tax for which the IRS has asserted a deficiency.” H. Conf. Rept. 100-1104, at 231 (1988), 1988-3 C.B. 473, 721.

17 In describing the law as it existed before the enactment of sec. 6512(b)(2), the conference report states:

The Tax Court has jurisdiction to determine that a taxpayer is due a refund of a tax for which the IRS has asserted a deficiency. However, if the IRS fails to refund or credit an overpayment determined by the Tax Court, the taxpayer must seek relief in another court. [H. Conf. Rept. 100-1104, at 231 (1988), 1988-3 C.B. 473, 721.]

Describing the “Reasons for change”, the report of the Senate Finance Committee states:

The committee believes that if the Tax Court determines that a taxpayer is due a refund and the IRS fails to issue that refund, the taxpayer should not have to incur the additional time, trouble, and expense of enforcing the Tax Court’s decision in another forum. Rather, the taxpayer should be able to enforce the decision in the court that entered the decision. [S. Rept. 100-309, at 17 (1988).]

18 As discussed infra, this situation changed in 1996, with the enactment of sec. 6404(h) (as currently designated), by the Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 302(a), 110 Stat. 1457 (1996). This Court has construed this provision, which expressly cross-references sec. 6512(b), as conferring on the Tax Court jurisdiction to determine the amount of a taxpayer’s overpayment in a proceeding brought pursuant to sec. 6404(h) to review the IRS’s failure to abate interest. See Goettee v. Commissioner, T.C. Memo. 2003-43.

19 We do not mean to suggest that this Court is foreclosed from considering whether the taxpayer has paid more than was owed, where such a determination is necessary for a correct and complete determination of whether the proposed collection action should proceed. Conceivably, there could be a collection action review proceeding where (unlike the instant case) the proposed collection action is not moot and where pursuant to sec. 6330(c)(2)(B), the taxpayer is entitled to challenge “the existence or amount of the underlying tax liability”. In such a case, the validity of the proposed collection action might depend upon whether the taxpayer has any unpaid balance, which might implicate the question of whether the taxpayer has paid more than was owed.

20 Sec. 6511 requires a taxpayer to file a refund claim “within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid.” Sec. 6511(a); see sec. 6511(b)(1); Commissioner v. Lundy, 516 U.S. 235, 240 (1996).

21 Neither in the administrative hearing nor in this court proceeding has petitioner expressly asserted any claim for interest abatement pursuant to sec. 6404. The gist of her claim is that respondent has erroneously or illegally assessed interest, by failing to make timely notice and demand for payment of her 1992 deficiency. A claim for interest abatement predicated on allegations of erroneous or illegal assessment is prohibited in an income tax case (such as the instant case), by virtue of sec. 6404(b), which provides: “No claim for abatement shall be filed by a taxpayer in respect of an assessment of * * * [income] tax imposed under subtitle A”. See Urbano v. Commissioner, 122 T.C. at 395; see also Melin v. Commissioner, 54 F.3d 432 (7th Cir. 1995); Bax v. Commissioner, 13 F.3d 54, 58 (2d Cir. 1993); Asciutto v. Commissioner, T.C. Memo. 1992-564, affd. per order 26 F.3d 108 (9th Cir. 1994). Petitioner has not alleged, and the record does not suggest, that she qualifies for abatement of interest under the applicable version of sec. 6404(e), which would require unreasonable error or delay resulting from a “ministerial act”. See Urbano v. Commissioner, supra at 390 n.4 (describing the 1996 legislative amendment which broadened the scope of sec. 6404(e) to include “managerial and ministerial” acts, effective for interest accruing on deficiencies for taxable years beginning after July 30, 1996).