Jeanne M. Trent - Page 12

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          2001 after petitioner applied for relief from joint and several             
          liability.  Section 6015(e)(1)(B) states that respondent may not            
          levy on a requesting spouse’s property until the close of the               
          90-day period after respondent makes a final determination                  
          respecting that spouse’s election for relief from joint and                 
          several liability under section 6015(b) or (c), and, if a                   
          petition is filed with the Tax Court during that period, the                
          restriction upon such a levy continues until the Court’s decision           
          becomes final.                                                              
               A levy must be distinguished from an offset of an                      
          overpayment or refundable credit, such as the earned income                 
          credit of section 32.  See, e.g., Belloff v. Commissioner, 996              
          F.2d 607, 615-616 (2d Cir. 1993) (comparing discussion of “levy”            
          in United States v. Natl. Bank of Commerce, 472 U.S. 713, 720               
          (1985), with “setoff” in United States v. Munsey Trust Co., 332             
          U.S. 234, 239 (1947)), affg. T.C. Memo. 1991-350.  Section                  
          6402(a) grants the Commissioner the ability to credit an                    
          overpayment to offset any taxpayer liability.  An overpayment               
          includes the amount of a refundable credit that exceeds any tax             
          owed.  See sec. 6401(b)(1); Savage v. Commissioner, 112 T.C. 46,            
          48 (1999).  The Commissioner properly may engage in nonlevy                 
          collection actions, such as offsetting overpayments from other              
          tax years after the requesting spouse files for relief.  See,               
          e.g., Fulgoni v. United States, 23 Cl. Ct. 119, 126 (1991) (to              

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