This is so, the defendant contends, because spouses filing joint returns have a separate interest in any resulting overpayment, and the Kemps, in fact, filed a joint tax return in 1984. SeeGens v. United States, 673 F.2d 366, 368, 230 Ct.Cl. 42 (1982) (citing Rosen v. United States, 397 F.Supp. 342, 343 (E.D.Pa.1975)). Consequently, the defendant asserts that Ms. Kemp is an indispensable party and the plaintiff's failure to join her warrants a judgment in the defendant's favor as to the plaintiff's 1984 claim.

The Government can enforce these assessments until it has collected successfully an amount equal to the payroll tax liability which has given rise to the penalty assessments.... When the Government seeks satisfaction of the payroll tax liability vis-a-vis an assertion of 100-percent penalty assessments, it is entitled to choose the liable parties from whom it will collect.         615 F.2d 1335, 1339-40, 222 Ct.Cl. 407 (1980) (quotation marks and citations omitted), appeal after remand, 673 F.2d 366, 230 Ct.Cl. 42,cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982).         Oral argument on the underlying appeal was held on February 18, 1992.

In the context of tax overpayments, spouses filing a joint return have separate interests in the overpayment. See Gens v. United States, 673 F.2d 366 (Ct.Cl. 1982); Rosen v. United States, 397 F. Supp. 342, 344 (E.D.Pa. 1975). By promulgating procedures for, see n. 7, supra, and by, in fact, returning the nonobligated plaintiff's share of the tax overpayment, including the EIC, defendants have conceded the nonobligated plaintiffs' interests in their EIC's.

“Put another way, the maker of the overpayment is entitled to the credit or refund ...” Kemp v. United States, 131 F.R.D. 212, 213 (N.D.Ga.1990) (quoting Gens v. United States, 230 Ct.Cl. 42, 673 F.2d 366, 368 (1982)) (internal quotation marks omitted) (refund apportionable to extent of contribution to overpayment of tax). The mere filing of a joint income tax return does not result in a transfer of property from one spouse to another.

Id. Further, many courts have determined that spouses have separate interests in their tax refund, directly proportional to the taxes paid on income generated. Gordon v. United States, 757 F.2d 1157 (11th Cir. 1985); United States v. MacPhail, 149 Fed.Appx. 449 (6th Cir. 2005); Rosen v. United States, 397 F.Supp. 342, 343 (E.D.Pa. 1975); Gens v. United States, 230 Ct.Cl. 42, 673 F.2d 366 (1982), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982); In re Jones, 219 B.R. 631, 635 (Bankr.M.D.Fla. 1998). In the instant case, the non-debtor spouse contributed no taxable income, so the entire tax refund is attributable to the Debtor.

Thus, the repayment of tax withholdings by virtue of a tax refund, even though made payable to both Appellants, is property of the Debtor and consequently property of the estate. See, e.g., Kemp v. United States, 131 F.R.D. 212, 213 (N.D.Ga. 1990) ("[B]etween spouses `an overpayment is apportionable to the extent that he or she contributed to the overpaid tax'") (quoting Gens v. United States, 673 F.2d 366, 368 (Ct.Cl. 1982)). We note that the bankruptcy court states without cited authority that a tax refund under Wyoming law is held as a tenancy in common.

The language of 26 U.S.C. § 6402 (2002), as previously quoted, appears clear, the IRS may setoff one person's tax liability against that same person's overpayment. Gens v. United State, 673 F.2d 366, 367-68 (Ct.Cl. 1982) (holding the language of the § 6402 limits setoff to the person who actually made the overpayment). It is undisputed the tax refunds in the present case arose from joint tax returns.

See also Gordon v. United States, 757 F.2d 1157, 1160 (11th Cir. 1985) ("Where spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments."); Gens v. United States, 230 Ct.Cl. 42, 673 F.2d 366, 368 (1982), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), and reh'g denied, 459 U.S. 1081, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982) (holding that Wife was not entitled to any part of the overpayment for failure of proof that she paid any part of it). Claimant's interest in the refund check therefore equals the amount which she contributed to the 1991 income taxes. Because Claimant contributed at least $2,228.

pursuant to the IRS Code and Federal Law an overpayment of taxes which results in a refund belongs to the spouse that paid the taxes. See: Gordon v. United States, 757 F.2d 1157 (11th Cir. 1985); Gens v. United States, 673 F.2d 366 (Ct. Cl.), cert, denied, 459 U.S. 906 (1980) ("[t]he overpayment goes to the maker of the overpayment, not the contributor to income") United States v. McPhail, 149 Fed.Appx. 449 (2005) (the source of the payment determines the ownership of the refund).In re Bathrick, 1 BR 428, 430 (Bankr.S.D.Tex. 1979) ("the source of an overpayment of income tax determines the character of the refund") Samadi v. United States, 121 AFTF.2d 2018-639 (DSC 2018) (dismissing ex-husband's refund complaint for stated years due to lack of standing because ex-wife had paid the tax).