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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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Last modified: May 25, 2011