T.C. Memo. 2007-311



                      UNITED STATES TAX COURT



        GARY DEAN AND TERI COLLEEN MADDEN, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23403-05.             Filed October 15, 2007.



     Gary Dean and Teri Colleen Madden, pro sese.

     Hans Famularo, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   Respondent determined a deficiency in

petitioners’ Federal income tax of $1,779 for 2003.   The issue

for decision is whether we have jurisdiction to review the

crediting by respondent, pursuant to his authority under section
                               - 2 -

6402(a),1 of an overpayment made by petitioners in 2003 towards

petitioners’ unpaid 1991 and 1992 tax liabilities.

                            Background

     Petitioners resided in Banning, California, when the

petition in this case was filed.

     Petitioners timely filed their joint Federal income tax

return for 2003.   On their return, petitioners claimed an

overpayment of $2,372.90.   Petitioners also reported a premature

distribution of $17,786.51 from their qualified retirement plan.

Petitioners did not indicate on their return that they were

liable for any additional amount as a result of this premature

distribution.

     Respondent applied petitioners’ 2003 overpayment to their

unpaid tax liabilities for 1991 and 1992.2     Respondent

subsequently determined that petitioners’ early distribution from

their qualified retirement plan resulted in a 10-percent

additional tax under section 72(t).3     Accordingly, respondent


     1
       All section references are to the Internal Revenue Code in
effect for the year in issue.
     2
       Respondent applied $874.85 against petitioners’ 1991 tax
liability and the remaining $1,498.05 towards petitioners’ 1992
tax liability.
     3
       Sec. 72(t)(1) generally provides that if a taxpayer
receives any amount from a qualified retirement plan, the
taxpayer’s Federal income tax liability is increased by an amount
equal to 10 percent of the portion of the amount received from
the plan which is includable in gross income. Sec. 72(t)(2)
                                                   (continued...)
                               - 3 -

determined a $1,779 deficiency in petitioners’ 2003 Federal

income tax,4 and on September 12, 2005, respondent issued a

notice of deficiency to petitioners.

     On December 12, 2005, petitioners filed their petition.

Petitioners argue that their 2003 overpayment should have been

applied to cover the $1,779 deficiency that resulted from the

additional tax required by section 72(t)(1).5     Petitioners’ case

was set for trial at the Court’s February 5, 2007, Los Angeles,

California, trial session.   On February 5, 2007, petitioners

failed to make an appearance, and respondent submitted a motion

to dismiss for lack of prosecution.     Petitioner Gary Madden,

however, appeared before the Court on February 6, 2007, and we

set petitioners’ case for recall.6     On February 8, 2007, we

denied respondent’s motion to dismiss for lack of prosecution and

conducted a trial.




     3
      (...continued)
lists the circumstances in which a taxpayer is permitted to
receive distributions from his or her qualified retirement plan
without incurring the 10-percent additional tax mandated by sec.
72(t)(1).
     4
       The $1,779 deficiency calculated by respondent is 10
percent of $17,786.51, the amount of the distribution from
petitioners’ retirement plan includable in gross income.
     5
       Petitioners concede that they are liable for the $1,779
deficiency under sec. 72(t).
     6
       Petitioners mistakenly believed their case was calendared
for Feb. 6, 2007.
                               - 4 -

                             Discussion

     Under section 6402(a), the Secretary, within the applicable

period of limitations, may credit any amount of an overpayment

against any liability attributable to an internal revenue tax

owed by the person who made the overpayment.   As discussed above,

respondent credited petitioners’ 2003 overpayment to petitioners’

outstanding tax liabilities for 1991 and 1992.   Petitioners would

have us recredit their 2003 overpayment towards their $1,779

deficiency for 2003 to cover the 10-percent additional tax

resulting from the early withdrawal from their retirement

account.   Petitioners offer no support for their argument that we

possess jurisdiction to recredit petitioners’ overpayment.

     We cannot recredit petitioners’ overpayment.   The Tax Court

is a court of limited jurisdiction and may exercise its

jurisdiction only to the extent expressly authorized by Congress.

Naftel v. Commissioner, 

(1985).    Pursuant to section

6512(b)(4), we do not have jurisdiction to review any credit made

by the Commissioner under section 6402(a).    See Bocock v.

Commissioner, 

, 182 (2006); Savage v. Commissioner,

, 49-51 (1999).   Accordingly, we do not have

jurisdiction to decide whether respondent properly credited

petitioners’ 2003 overpayment to tax years 1991 and 1992.
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To reflect the foregoing,


                                    Order of dismissal for lack

                            of jurisdiction will be entered.