Thomas G. & Sara A. Martin, Petitioner

T .C . Summary Opinion 2010-84

UNITED STATES TAX COUR T

THOMAS G . AND SARA A . MARTIN, Petitioners v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 9629-09S . Filed June 28, 2010 .

Thomas G . and Sara A . Martin, pro sese .

Matthew A . Houtsma , for respondent .

CHIECHI, Judge : This case was heard pursuant to the provi- sions of section 7463 of the Internal Revenue Code in effect when the'petition was filed .' Pursuant to section 7463(b), the deci- sion to be entered is not reviewable by any other court, and this opinion shall not be treated as precedent for any other case .

'Hereinafter, all section references are to the . Internal Revenue Code in effect for the year at .issue . All Rule refer- ences are to the Tax Court Rules of Practice"and Procedure .

SERVED JUN 2 8 2010

We must decide whether the Internal Revenue Service entere d into a binding` settlement agreement with petitioners regardin g their taxable year 2006 when it cashed a check that it receive d from them with respect to that year . We hold that the Internal Revenue Service did not .

Backgroun d Virtually all of the facts have been stipulated and are s o found .

Petitioners resided in Colorado . at the time . they filed the petition in this case .

Petitioners timely filed Form , 1040 , U .S . Individual Income Tax Return , for their taxable . year 2006 ( 2006 return ) .

In that return , petitioners reported tax of $33 , 468 and alternative, minimum tax of $1,274, or a .total of '$ 34,742 .

In their 2006 return, petitioners reported tax withheld of $ 23,926 ., However , only $9,926 of tax -had been withheld from their wages during, ' 2006 . Although petitioners had made $14 , 000 in , estimated ta x payments for their , taxable year 2006 , petitioners did not report in their 2006 .return . any estimated tax payments for that years Instead , the word ,," included ". appeared,. on the line in, that.. return .

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where such payments are, required to be reported 2 'Inpetition- 2The $23,926 of tax withheld that petitioners reported in- their 2006 return . is equal to the total .of .>tax withheld from their wages during 2006(i .e ., $9,926)'and the estimated tax payments that they made for 'that year . (i .`e . , $14,000) .

3 - ers' 2006 return, petitioners reported tax due of $10,307, which they paid when they filed that return .

On February 23, 2009, respondent sent to petitioners a notice of deficiency for their taxable year 2006 (2006 notice) .

In that notice, respondent made various determinations with respect to petitioners' taxable year 2006 . As a result, respon- dent determined that there is a deficiency of $2,166 in petition- ers' tax for that year . 3 Petitioners consulted with an accountant (petitioners' accountant) after they received the 2006 notice . On March 9, 2009, that accountant sent a letter (March 9, 2009 letter) to the Internal Revenue Service (Service) with respect to that notice .

Petitioners' accountant included with that letter petitioners' check payable to the Service .in the amount of $2;166, which the Service cashed . The March 9, 2009 letter stated in pertinent part :

The [2006] notice and letter reflect some additional interest, dividend and capital gain income that wa s 3Respondent's determination in the 2006 notice of a $2,166 deficiency in petitioners' tax for their taxable year 2006 did not depend on any determinations regarding petitioners' having reported in their 2006 return that they had tax withheld of .$23,926 during 2006 . After having determined that deficiency, respondent indicated in that notice that petitioners erroneously reported in their 200 6.return tax withheld during 2006 of $23,926 when in fact tax withheld during that year was only $9,926 . As a result, respondent indicated in the 2006 notice that although the deficiency that respondent determined was $2,166, petitioners owed $17,526, which included interest as provided by law to June 11, 2008 .

inadvertently omitted from the original [ .2006] return . The taxpayer [sic] agrees with the tax due related to those items in the amount .of-$2„166 .00 . Enclosedis .a check for that- amount- .

The notice does not reflect the $14°,000 . .00 of estimated tax payments made by the taxpayer .[sic] in 'a timely manner . As explained in previous correspondence dated May 23, 2008 and December-9 ., .2008 * * *, the taxpayer [sic] inadvertently included his [sic] estimated pay- ments in the tax withheld line 64 instead of line 65 on the original return . Per thie schedule enclosed, the . tax liability reflected on the original- return wa s paid .

We request that the check in the amount of'$2166 .00be accepted as the payment of the-tax .in full and the payment decrease per the notice be-removed due to the information presented herein. A . ' Discussion Petitioners have the burden of establishing that the Service entered into a settlement agreement with them ; regarding thei r taxable year 2006 when it cashed the check for,$2,166 ;-that it received from them-in March~2009 . 4. See Rule142(a) ; Welch :v .

.` Helvering , 290 U .S . 111, 115 (1933 ) Petitioners argue that the : doctrine of accord and,-satisfac- tion requires the Court to hold that,the Service entered into a settlement agreement with them regarding their taxable year2006 when it cashed . .the $2,166 .check that-they sent .to it in March 2009 . We reject that- .argument . The doctrine of accord and satisfaction on which .petitioners rely does not apply in deter-

mining whether a valid settlement agreement exists between a taxpayer and the Service . See Kehew v . Commissioner , T .C . Memo .

1983-354 ; Colebank v . Commissioner , T .C . Memo . 1977-46, affd .

without published opinion 610 F .2d 999 (D .C . Cir . 1979) .

I stead, sections 7121 and 7122 control that question . See Kehew v . Commissioner , supra .

Petitioners do not argue, and the record does not establish, that the requirements of section 7121 or section 7122 were satisfied when the Service cashed the $2 ;166 check that it received from them in March 2009 . On the record before us, we find that the Service did not enter into a binding settlement agreement with petitioners regarding their taxable year 2006 when it cashed that check . See Botany Worsted Mills v . United States , 278 U .S . 282 (1929); Kehew v . Commissioner , supra ; Colebank v .

Commissioner , supra .

We have . considered all of the contentions and arguments of petitioners that are not addressed herein, and we find them to be without merit . ' 5Petitioners ., who are not claiming an overpayment for their taxable year 2006, advance some contentions and arguments regarding certain nonassessed interest and nonrebate refunds over which the Court does not have jurisdiction . See Williams v . Commissioner , 131 T .C . 54, 55-56 (2008) ; Pen Coal Corp . v . Commissioner , 107 T .C . 249, 256 (1996) ; Villafane v . Commissioner , T .C . Memo . 2010-118 .