121 T.C. No. 16

UNITED STATES TAX COURT

EDWINA DIANE CAMPBELL, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 2604-02. Filed November 24, 2003.

By Final Notice of Determination dated Nov. 6, 

2001, R determined that P was not entitled to relief 

from joint and several liability relating to 1989 

because the request was, pursuant to sec. 6015, I.R.C.,

filed more than 2 years after R’s first collection 

activity against P. On Feb. 1, 2002, P filed, 

pursuant to sec. 6015(e)(1), I.R.C., a petition seeking

review of R’s determination. On Mar. 10, 2003, P 

filed a Motion for Partial Summary Judgment and on 

Mar. 31, 2003, R filed a Notice of Objection and 

Cross-Motion for Summary Judgment. The issue in both 

parties’ motions is whether R’s application of P’s 

overpayment, relating to 1998, as a credit against P’s 

1989 tax liability is, pursuant to sec. 6015, I.R.C., a

collection activity that bars P’s request for relief 

relating to 1989.
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1 Unless otherwise indicated, all section references are to

the Internal Revenue Code, and all Rule references are to the Tax

Court Rules of Practice and Procedure.

Held: R’s offset of P’s overpayment is, pursuant 

to sec. 6015, I.R.C., a collection activity. 

Held, further, P’s Motion for Partial Summary 

Judgment is denied. 

Held, further, R’s Cross-Motion for Summary 

Judgment is granted. There is no genuine issue as to 

whether P is entitled to relief from joint and 

several liability relating to 1989 because P’s election

was, pursuant to sec. 6015, I.R.C., filed more than 2 

years after R’s first collection activity against P. 

Edwina Diane Campbell, pro se.

Erin K. Huss, for respondent.

OPINION

FOLEY, Judge: This matter is before the Court on

Petitioner’s Motion for Partial Summary Judgment and Respondent’s

Notice of Objection and Cross-Motion for Summary Judgment

pursuant to Rule 121.1 The sole issue for decision is whether

respondent’s application of petitioner’s overpayment, relating to

1998, as a credit against petitioner’s 1989 tax liability is,

pursuant to section 6015, a collection action that bars

petitioner’s request for relief from joint and several liability

relating to 1989. 
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Background

On May 13, 1999, respondent applied, pursuant to section

6402(a), petitioner’s overpayment, relating to 1998, as a credit

against a portion of petitioner’s 1989 tax liability and sent

petitioner written notification thereof. On July 23, 2001,

petitioner requested, pursuant to section 6015(b), (c), and (f),

relief from joint and several liability relating to her 1989

joint Federal income tax return filed with Alvin L. Campbell. 

By Final Notice of Determination dated November 6, 2001,

respondent determined that petitioner was not entitled to relief

from joint and several liability relating to 1989 because the

request was, pursuant to section 6015, filed more than 2 years

after respondent’s first collection activity against petitioner. 

On February 1, 2002, petitioner, while residing in Tucson,

Arizona, filed a petition pursuant to section 6015(e)(1) seeking

review of respondent’s determination. Petitioner, on March 10,

2003, filed a Motion for Partial Summary Judgment, accompanied by

a Memorandum of Points and Authorities, and Affidavit in support

thereof. On March 31, 2003, respondent filed a Notice of

Objection and Cross-Motion for Summary Judgment, accompanied by

Declarations, and Memorandum of Law in support thereof. 

Petitioner, on April 16, 2003, filed an Opposition to

Respondent’s Cross-Motion for Summary Judgment. 
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2 On July 18, 2002, the Commissioner published final

regulations, pursuant to section 6015, that define a collection

activity to include “an offset of an overpayment of the

requesting spouse against a liability under section 6402”. Sec.

1.6015-5(b)(2)(i), Income Tax Regs. These regulations are

applicable to all requests for relief from joint and several

liability filed on or after July 18, 2002, and, thus, not

applicable to petitioner's request, which was filed before that

date. Sec. 1.6015-9, Income Tax Regs.

Discussion

An election pursuant to section 6015(b), (c), or (f) must be

made within 2 years of respondent’s first collection activity

taken after July 22, 1998, against the individual making the

election.2 Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3201(g)(2), 112 Stat. 740; sec.

6015(b)(1)(E), (c)(3)(B); Rev. Proc. 2000-15, sec. 5, 2000-1 C.B.

447, 449. 

Petitioner contends that respondent’s offset of her

overpayment is not, pursuant to section 6015, a collection

activity. We disagree. The offset of an overpayment is by its

plain and ordinary meaning a collection activity pursuant to

section 6015. See Perrin v. United States, 444 U.S. 37, 42

(1979) (stating that “A fundamental canon of statutory

construction is that, unless otherwise defined, words will be

interpreted as taking their ordinary, contemporary, common

meaning”); Trent v. Commissioner, T.C. Memo. 2002-285 (stating

that nonlevy collection actions include “offsetting overpayments
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from other tax years after the requesting spouse files for

relief”). Because petitioner reported overpayments of tax on her

1998 return, she generally would be entitled to claim a refund. 

See sec. 6511(a), (b)(1); Commissioner v. Lundy, 516 U.S. 235,

240 (1996). Pursuant to section 6402(a), however, respondent

used petitioner’s overpayment to partially satisfy her 1989 tax

liability. Thus, respondent engaged, pursuant to section 6015,

in a collection activity against petitioner. Because

petitioner’s election was filed more than 2 years after that

collection activity (i.e., respondent applied the overpayment and

sent petitioner written notification thereof on May 13, 1999, and

on July 23, 2001, petitioner elected relief), there is no genuine

issue as to whether petitioner is entitled to relief from joint

and several liability relating to 1989. See Rule 121(b); Natl.

Indus., Inc. v. Republic Natl. Life Ins. Co., 677 F.2d 1258, 1265

(9th Cir. 1982). Thus, Petitioner’s Motion for Partial Summary

Judgment is denied, and Respondent’s Cross-Motion for Summary

Judgment is granted. 

Contentions we have not addressed are irrelevant, moot, or

meritless.
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To reflect the foregoing,

An appropriate order and 

decision will be entered.