Marci L. and Carl C. Voigt - Page 7

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               Receipt is therefore immaterial to the issues before                   
               the Court.                                                             
               As explained more fully below, we agree that petitioners’              
          claim with respect to the disputed refund check does not decrease           
          the amount of the otherwise agreed-upon deficiency and cannot               
          give rise to an overpayment in the present circumstances.                   
               1.  No Effect on the Agreed-Upon Deficiency                            
               The disputed refund check is immaterial to the calculation             
          of petitioners’ deficiency.  “Deficiency” is a term of art                  
          defined in section 6211.  Generally speaking and as relevant                
          herein, a deficiency is simply the amount by which the “tax                 
          imposed” under the law exceeds the amount of tax shown on the               
          return.  Sec. 6211(a).  The determination of a deficiency under             
          section 6211(a) does not take into account payment or nonpayment            
          of a claimed EIC.  See Wilson v. Commissioner, T.C. Memo. 2001-             
          139.  Moreover, the amount of a deficiency is determined without            
          regard to the amount of taxes withheld on a taxpayer’s income.              
          See sec. 6211(a) and (b)(1); Keefe v. Commissioner, 15 T.C. 947,            
          955-956 (1950).                                                             
               In the instant case, the “tax imposed” on petitioners’ 2000            
          income is zero.  The tax shown by petitioners on their 2000 tax             
          return was negative $2,396; i.e., the amount of EIC they showed             
          on their 2000 tax return and which they now concede is not                  

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