UNITED STATES TAX COURT
DENNIS J. LAWLESS, Petitioner v
.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1926-00S. Filed November 28, 2001.
Dennis J. Lawless, pro se.
John E. Glover
, for respondent.
THORNTON, Judge
: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect when the petition was filed. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority. Unless otherwise indicated, all subsequent section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Discussion
The first issue is whether petitioner is liable for the section 72(t) 10-percent additional tax on the 1997 Denso Plan distribution.
As a general rule, if a taxpayer receives any amount from a section 401(k) retirement plan, the taxpayer is liable, in the year of receipt, for a 10-percent additional tax on the portion of the amount which is includable in gross income. Secs. 72(t), 401(a), 4974(c). This general rule is subject to a number of exceptions. See sec. 72(t)(2).
In the notice of deficiency, respondent determined that petitioner’s taxable income included no amount from the Denso Plan distribution. Respondent has not sought any increased deficiency resulting from the inclusion of the Denso Plan distribution in petitioner’s gross income and has not otherwise alluded to this issue at trial or on brief. We deem respondent to have conceded that the Denso Plan distribution is not includable in petitioner’s gross income. Accordingly, petitioner is not subject to the 10-percent additional tax on the Denso Plan distribution.
The second issue is whether respondent properly determined a deficiency based upon an erroneous refund to petitioner. The jurisdiction of this Court is limited as specifically authorized by statute. See Belloff v. Commissioner , 996 F.2d 607, 611 (2d Cir. 1993), affg. T.C. Memo. 1991-350; Pen Coal Corp. v. Commissioner , 107 T.C. 249, 254 (1996). That authorization encompasses the redetermination of deficiencies. See secs. 6214, 7442; Bregin v. Commissioner , 74 T.C. 1097, 1101 (1980); Midland Mortgage v. Commissioner , 73 T.C. 902, 907 (1980) . The parties do not dispute that respondent issued a valid statutory notice of deficiency and that petitioner made a timely petition therefrom. Therefore, we have jurisdiction to redetermine the deficiency. See secs. 6212 and 6213; Rule 13(a), (c); Monge v. Commissioner , 93 T.C. 22, 27 (1989); Normac, Inc.
v. Commissioner , 90 T.C. 142, 147 (1988).
It is well settled that the Commissioner may determine a deficiency based upon an erroneous refund. See Miller v. Commissioner , 23 T.C. 565, 568 (1954), affd. 231 F.2d 8 (5th Cir. 1956); Oilbelt Motor Co. v. Commissioner , 16 B.T.A. 831 (1929).
The question here is whether a deficiency exists.
Section 6211(a) defines the term “deficiency” as the amount by which the tax imposed exceeds the excess of:
(1) the sum of–-(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus (B) the amounts previously assessed (or collected without assessment) as a deficiency, over–-(2) the amount of rebates, as defined in subsection (b)(2), made.
Amounts Previously Assessed as a Deficiency
On May 25, 1998, respondent assessed petitioner’s tax as
$7,219. This assessment appears to have been made pursuant to section 6201(a)(1), which authorizes summary assessment of taxes shown on the return. This assessment was not made pursuant to the deficiency procedures described in subchapter B of chapter 63 of the Code. See sec. 6201(e). (For discussion of the distinction between summary assessments and deficiency assessments, see Murray v. Commissioner , 24 F.3d 901, 902-903 (7th Cir. 1994); Meyer v. Commissioner , 97 T.C. 555, 559-560 (1991).) Accordingly, the May 25, 1998, assessment does not constitute an “amount previously assessed * * * as a deficiency” within the meaning of section 6211(a)(1)(B). Thus, the amounts previously assessed as a deficiency are zero.
Rebates
Pursuant to section 6211(b)(2), the term “rebate” means
(with qualifications not germane here) “so much of an abatement, credit, refund, or other repayment as is made on the ground that the income tax imposed” is less than the amount shown on the taxpayer’s return. Sec. 301.6211-1(f), Proced. & Admin. Regs. On July 6, 1998, respondent abated the entire $7,219 assessment that he had previously made on May 25, 1998. Although the record is silent as to why respondent made this abatement, the fact that it was for the same amount as had been assessed 2