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overpayments, subject to specific limitations, under section
6512(b). Obviously, the provisions of section 6512(b) are not
applicable because petitioner herein is not claiming any
overpayment. It is respondent who, having accepted the fact that
there was an overpayment and refunded it, now seeks to utilize
the deficiency procedure to recapture that refund. To achieve
her objective, respondent's claim must fall within the scope of
the deficiency procedure.
The term “deficiency” means 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. [Sec. 6211(a).]
The tax imposed and the tax shown on the return are determined
without regard to payment on account of estimated tax or
withholding credits. Sec. 6211(b)(1). Section 6211(b)(2)
defines “rebate” to mean “so much of an abatement, credit,
refund, or other payment, as was made on the ground that the tax
imposed * * * was less than the excess of the amount specified in
subsection (a)(1) over the rebates previously made." Thus, not
all refunds are rebates. See O’Bryant v. United States, 49 F.3d
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Last modified: May 25, 2011