Marci L. and Carl C. Voigt - Page 9

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          (indeed, respondent contends that he has already paid out                   
          petitioners’ claimed overpayment, which includes this $225                  
          amount).4  As previously noted, the tax imposed on petitioners’             
          2000 income is zero.  Accordingly, if we were to find that                  
          respondent never paid out the part of petitioners’ claimed                  
          overpayment attributable to their $225 wage withholding credit,             
          then, pursuant to section 6401(b), $225 (the excess of $225 over            
          zero) would be considered an overpayment, at least viewed in                
               Our analysis, however, does not end there, for ultimately,             
          in determining whether petitioners have made an overpayment, the            
          question is not how this $225 item should be viewed in isolation            
          but whether petitioners have made “payment in excess of that                
          which is properly due.”  Jones v. Liberty Glass Co., supra at               
          531.  The answer to that question is clearly no.  Although the              
          tax imposed on petitioners’ 2000 income is zero, there remains an           
          agreed deficiency of $2,396, due to their erroneously claiming              
          the EIC on their return.  Of that sum, it is undisputed that                
          $1,725 has been refunded to them or for their benefit.  If we               
          were to assume, as petitioners claim, that the $896 disputed                
          refund check went astray and that petitioners’ $225 wage                    

               4 Inasmuch as petitioners concede that they were not                   
          entitled to the EIC claimed on their 2000 tax return, the EIC is            
          not an “allowable” credit and so is not considered in determining           
          the existence or amount of an overpayment pursuant to sec.                  

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