OVERPAYMENT CREDIT CANNOT BE REVIEWED.

Hans Famularo, for respondent.

Petitioners timely filed their joint Federal income tax return for 2003. On their return, petitioners claimed an overpayment of $2,372.90. Petitioners also reported a premature distribution of $17,786.51 from their qualified retirement plan. Petitioners did not indicate on their return that they were liable for any additional amount as a result of this premature distribution.

Respondent applied petitioners' 2003 overpayment to their unpaid tax liabilities for 1991 and 1992.² Respondent subsequently determined that petitioners' early distribution from their qualified retirement plan resulted in a 10-percent additional tax under section 72(t).³ Accordingly, respondent determined a $1,779 deficiency in petitioners' 2003 Federal income tax,⁴ and on September 12, 2005, respondent issued a notice of deficiency to petitioners.

On December 12, 2005, petitioners filed their petition. Petitioners argue that their 2003 overpayment should have been applied to cover the $1,779 deficiency that resulted from the additional tax required by section 72(t)(1).⁵ Petitioners' case was set for trial at the Court's February 5, 2007, Los Angeles, California, trial session. On February 5, 2007, petitioners failed to make an appearance, and respondent submitted a motion to dismiss for lack of prosecution. Petitioner Gary Madden, however, appeared before the Court on February 6, 2007, and we set petitioners' case for recall.⁶ On February 8, 2007, we denied respondent's motion to dismiss for lack of prosecution and conducted a trial.

We cannot recredit petitioners' overpayment. The Tax Court is a court of limited jurisdiction and may exercise its jurisdiction only to the extent expressly authorized by Congress. Naftel v. Commissioner, 85 T.C. 527 (1985). Pursuant to section 6512(b)(4), we do not have jurisdiction to review any credit made by the Commissioner under section 6402(a). See Bocock v. Commissioner, 127 T.C. 178, 182 (2006); Savage v. Commissioner, 112 T.C. 46, 49-51 (1999). Accordingly, we do not have jurisdiction to decide whether respondent properly credited petitioners' 2003 overpayment to tax years 1991 and 1992.

To reflect the foregoing,

Order of dismissal for lack of jurisdiction will be entered.

² Respondent applied $874.85 against petitioners' 1991 tax liability and the remaining $1,498.05 towards petitioners' 1992 tax liability.

³ Sec. 72(t)(1) generally provides that if a taxpayer receives any amount from a qualified retirement plan, the taxpayer's Federal income tax liability is increased by an amount equal to 10 percent of the portion of the amount received from the plan which is includable in gross income. Sec. 72(t)(2) lists the circumstances in which a taxpayer is permitted to receive distributions from his or her qualified retirement plan without incurring the 10-percent additional tax mandated by sec. 72(t)(1).

⁴ The $1,779 deficiency calculated by respondent is 10 percent of $17,786.51, the amount of the distribution from petitioners' retirement plan includable in gross income.

⁵ Petitioners concede that they are liable for the $1,779 deficiency under sec. 72(t).

⁶ Petitioners mistakenly believed their case was calendared for Feb. 6, 2007.