T.C. Memo. 2015-110



                        UNITED STATES TAX COURT



                WILLIAM BILLY DEVY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 29088-13.                        Filed June 15, 2015.



      William Billy Devy, pro se.

      Tracey B. Leibowitz, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      VASQUEZ, Judge: Respondent determined a deficiency of $2,500 in

petitioner’s income tax for 2011. The issues for decision are: (1) whether

petitioner is entitled to a $2,500 American Opportunity Credit and (2) whether
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[*2] respondent’s intercept, under section 6402(c),1 of petitioner’s claimed

overpayment of his 2011 tax affects the validity of respondent’s subsequent

determination of a deficiency for that year.

                                FINDINGS OF FACT

      Some of the facts have been stipulated and are so found. The stipulation of

facts and the attached exhibits are incorporated herein by this reference. Petitioner

resided in Florida at the time he filed the petition.

      Petitioner claims that he paid a tax return preparation service known as “Tax

Whiz” to prepare and file his tax return for 2011. Petitioner’s 2011 Form 1040,

U.S. Individual Income Tax Return, claimed the standard deduction and a $2,500

American Opportunity Credit. After application of the credit, petitioner’s Form

1040 showed that he was due a $1,853 refund; however, he did not receive any

portion of the refund. Instead, the whole amount was offset to pay an outstanding

child support debt to the State of New York.

      Petitioner did not have any qualifying educational expenses in 2011, and he

states that he did not ask Tax Whiz to claim an educational credit on his 2011 tax

return. Petitioner also states that he did not review his 2011 tax return before it

      1
       Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for the year in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                          -3-

[*3] was filed by Tax Whiz. On October 7, 2013, respondent sent a statutory

notice of deficiency to petitioner. Petitioner timely filed his petition.

                                      OPINION

I.    American Opportunity Credit

      Respondent disallowed petitioner’s claimed American Opportunity Credit

for 2011. Petitioner argues that he is not responsible for claiming the American

Opportunity Credit on his Form 1040 because it was done fraudulently by his tax

return preparer, Tax Whiz, without his knowledge or consent.

      The American Opportunity Tax Credit is a modified version of the Hope

Scholarship Credit and is in effect for tax years 2009 to 2018. Sec. 25A(i). The

American Opportunity Credit provides for a credit against tax equal to “(A) 100

percent of so much of the qualified tuition and related expenses paid by the

taxpayer during the taxable year * * * as does not exceed $2,000, plus (B) 25

percent of such expenses so paid as exceeds $2,000 but does not exceed $4,000.”

Sec. 25A(i)(1). The credit phases out for taxpayers whose modified adjusted gross

income exceeds $80,000, or $160,000 for married taxpayers filing joint returns.

Sec. 25A(i)(4). In addition, up to 40% of this credit may be refundable. Sec.

25A(i)(5).
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[*4] As a general rule, the Commissioner’s determinations in a notice of

deficiency are presumed correct, and the taxpayer bears the burden of proving that

those determinations are erroneous. Rule 142(a); Welch v. Helvering, 290

U.S.111, 115 (1933). Petitioner did not produce any evidence tending to show he

was eligible for this credit. In fact, petitioner has admitted that he did not have

any qualifying educational expenses in 2011. Thus, petitioner is not entitled to the

American Opportunity Credit. We sustain respondent’s disallowance of this

credit.

          Taxpayers have a duty to review their tax returns before signing and filing

them. Magill v. Commissioner, 

, 479-480 (1978), aff’d, 

(6th Cir. 1981). By his own admission petitioner did not review the return in

question. Reliance on a tax return preparer cannot absolve a taxpayer from the

responsibility to file an accurate return. See Metra Chem Corp. v. Commissioner,

, 662 (1987) (“As a general rule, the duty of filing accurate returns

cannot be avoided by placing responsibility on a tax return preparer.”). Even if

Tax Whiz may have claimed the credit without his knowledge, petitioner is still

responsible for the resulting deficiency.
                                          -5-

[*5] II.     Application of Refund to Child Support Debt

       Petitioner argues that he should not have to repay the $1,853 overpayment

because the IRS applied that amount to pay his child support debt. Respondent

argues that we lack jurisdiction to adjudicate this issue because, inter alia, section

6402(g) precludes such jurisdiction. See Richards v. Commissioner, T.C. Memo.

2013-171.

       The fact that a tax overpayment for a particular year was applied to a child

support debt does not affect whether a taxpayer must pay a deficiency

subsequently determined for the same tax year. Whether an overpayment for a

given taxable year is refunded directly to a taxpayer or is intercepted for past-due

child support, the Commissioner nevertheless may determine that there is a

deficiency in tax for that year. Terry v. Commissioner, 

, 87 (1988). If

the Commissioner makes such a determination, the taxpayer is not entitled to an

offset of the intercepted amount against the amount of the deficiency. Sec.

6211(a).

       We also agree with respondent that this Court lacks jurisdiction to review

the application of petitioner’s $1,853 overpayment to his outstanding child support

debt. Section 6402(c) provides that “[t]he amount of any overpayment to be

refunded * * * shall be reduced by the amount of any past-due support”. See also
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[*6] 42 U.S.C. sec. 664(a)(1) (2006). Section 6402(g) provides that “[n]o court of

the United States shall have jurisdiction to hear any action, whether legal or

equitable, brought to restrain or review a reduction authorized by subsection (c)”.

This bars us from reviewing the reduction of petitioner’s 2011 overpayment to pay

his child support debt. See also Terry v. Commissioner, 91 T.C. at 87 (noting that

the fact that a prior refund was applied to a nontax child support debt does not

prevent the IRS from subsequently determining a deficiency for the same tax

year). Accordingly, we sustain respondent’s determination.

      To reflect the foregoing,


                                                     Decision will be entered for

                                               respondent.