*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 _____________________

No. 95-20059

Summary Calendar

 _____________________

SAM PENA and JO NELL PENA,

Plaintiffs-Appellants,

versus

THE UNITED STATES OF AMERICA,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Southern District of Texas

_______________________________________________________

July 27, 1995

Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.

PER CURIAM:*

Sam Pena and Jo Nell Pena sued the United States in district

court challenging their income tax liability for 1971, seeking a

refund of funds seized from them by the Internal Revenue Service

("IRS") to satisfy that liability. The district court dismissed

the complaint concluding that the court lacked subject matter

jurisdiction under 26 U.S.C. §6512(a), which precludes
2

jurisdiction over claims which have previously been filed in the

United States Tax Court. The court also concluded that even if

§6512 did not bar the Pena's claim the Government was entitled to

summary judgment in its favor based on the doctrine of res

judicata. We affirm.

After an audit of the Penas' income tax return for 1971, the

IRS found a deficiency and mailed a Notice of Deficiency to the

Penas in December of 1975. The Penas filed a petition in the

United States Tax Court in March of 1976. The Tax Court

dismissed the suit six years later for lack of prosecution. The

Penas did not appeal the Tax Court decision. In 1989 the IRS

seized proceeds from a bankruptcy distribution to which the Penas

were entitled. The Penas filed this suit in March of 1994. 

As the district court stated, §6512(a) provides that after a

taxpayer files a petition with the United States Tax Court, "no

suit by the taxpayer for the recovery of any part of the tax

shall be instituted in any court." 26 U.S.C. §6512(a). The

district court concluded that since the Penas had already filed

suit in the Tax Court they could not institute an action in

district court based on the same taxable income. See Solitron

Devices, Inc. v. United States, 862 F.2d 846, 848 (11th Cir.

1989). 

The Penas contend that their claim should still be heard in

district court because an exception to the jurisdictional bar is

provided for under the "mitigation provisions" of the Tax Code,

26 U.S.C. §§1311-14. These provisions allow for the correction
3

of the effect of certain types of errors made by a Tax Court

determination when the correction of the error would normally be

prevented by the operation of any law or rule of law, such as a

statute of limitations, if certain conditions are present. 26

U.S.C. §1311. One type of error allowed to be corrected under

the mitigation provisions is the double inclusion of an item of

gross income. This can mean the erroneous inclusion of the same

income to the same taxpayer for two taxable years or the

erroneous inclusion of the same income to two related taxpayers. 

26 U.S.C. §1312(1). The Penas claim that this type of error was

made in their case. 

In determining the Penas' 1971 tax liability, the IRS

attributed income to Mr. Pena based on his receipt of real

property as compensation. They claim that, in a subsequent

bankruptcy proceeding, any claim or legal right that Pena had in

this property was avoided and set aside by the trustee. The

property was attributed to Champions Racquet Club Estates, Inc. 

Pena was a shareholder in this company, and therefore he alleges

that he was again subjected to taxation on the property's value

based on his receipt of the proceeds from the sale of the

property in the form of a distribution. 

Even if the IRS took an inconsistent position resulting in

the double inclusion of an item of gross income by attributing

the property in question to the corporation as constructive

income once the bankruptcy court entered its judgment, after it

had previously attributed the same property to Pena as his
4

personal constructive income, this type of double inclusion is

not correctable under section 1312. Section 1312 applies to the

same income being included as items of gross income for two

related taxpayers. Section 1313(c)(1)-(7) defines the term

related taxpayers and a corporation and its shareholders are not

included in this list. See also Hindes v. United States, 371

F.2d 650, 654 (5th Cir.), cert. denied, 87 S.Ct. 1307 (1967). 

The mitigation provisions do not apply.

The Penas also argue that the inconsistent treatment of the

property, income to Pena versus income to the corporation,

constituted double inclusion to the Penas under the mitigation

statute. However, the property was included as an item of income

to Penas only once. Pena's distribution from the corporation may

have been affected by the inclusion of the property in the

corporation's income, but that is not the double inclusion to

which the statute applies.

AFFIRMED.