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petitioners from their respective unpaid liabilities for their
taxable years 1994 and 1995.
We now consider petitioners’ unpaid liability for 1998. It
is petitioners’ position that respondent should have applied
petitioners’ 1997 overpayment to offset part of their unpaid
liability for 1998, and not their unpaid liability for 1990.
Respondent argues that pursuant to section 6402(a) respondent’s
application of petitioners’ 1997 overpayment as a credit against
petitioners’ unpaid 1990 liability was proper. Petitioners do
not address that argument.10
Section 6402(a) provides in pertinent part:
10Instead, for the first time on brief, petitioners contend
that respondent violated the automatic stay imposed by 11 U.S.C.
sec. 362(a) (2000) when respondent applied petitioners’ 1997
overpayment as a credit against their unpaid 1990 liability. We
shall not consider that contention. The record does not estab-
lish that petitioners raised that contention at their Appeals
Office hearing, see Magana v. Commissioner, 118 T.C. 488, 493-494
(2002); Miller v. Commissioner, 115 T.C. 582, 589 n.2 (2000); see
also sec. 301.6320-1(f)(2), Q&A-F5, Proced. & Admin. Regs., or at
trial, see Elrod v. Commissioner, 87 T.C. 1046, 1070 (1986);
Robertson v. Commissioner, 55 T.C. 862, 865 (1971). In any
event, we note that, as pertinent here, the automatic stay
imposed by 11 U.S.C. sec. 362(a) was effective on May 18, 1998,
the date on which petitioners filed their bankruptcy petition in
the U.S. Bankruptcy Court for the Southern District of New York.
See 11 U.S.C. sec. 362(a). In April 1998, petitioners filed
their 1997 return which showed petitioners’ 1997 overpayment.
The notice informing petitioners that respondent had applied
petitioners’ 1997 overpayment as a credit against another tax
liability of petitioners was dated June 8, 1998. We find that
the record does not establish that respondent applied petition-
ers’ 1997 overpayment as a credit against petitioners’ unpaid
1990 liability on or after May 18, 1998, the date on which
petitioners filed their bankruptcy petition.
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