- 3 -
REIT of $8,041. This was the same amount claimed as "Other
payments" on page 2, line 59 of her Form 1040. The Form 1040,
while claiming the tax paid credits on Form 2439, failed to
report as income the undistributed long-term capital gains of
$43,204 she had shown on the Form 2439. On May 11, 1998,
respondent issued petitioner a refund check in the amount of
$10,659.25.1
Petitioner at the call of the case for trial admitted that
she now knows that there is no so-called "Black Tax" credit.
Discussion
Petitioner did not raise an issue concerning the recovery of
an erroneous refund in a deficiency proceeding. See Wilkins v.
Commissioner, 120 T.C. 109 n.5 (2003). The only issue petitioner
addressed at trial was the possibility that the Court would allow
her to pay less than the amount respondent determined is due.
Petitioner claimed on her return total tax payments of
$11,659. In the notice of deficiency, respondent determined that
she did not make $7,781 of the claimed payments. Petitioner
acknowledges that she is not entitled to claimed payments of
$7,781. She argues, however, that claiming payments that she did
not make was only "halfway" her fault because the Internal
1Prior to the issuance of the refund petitioner was notified
that due to an incorrect Social Security number for a qualifying
child her earned income credit was reduced. In the notice of
deficiency, petitioner's earned income credit was increased by
$260.
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