Robert E. Wadlow and Connie V. Wadlow - Page 36




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          of tax paid through withholding over the correct amount of tax              
          that was properly due, regardless of the fact that the                      
          Commissioner was time barred from assessing the proper tax.  The            
          taxpayer argued that we could not reduce any overpayment by                 
          considering unassessed tax liabilities which were barred by the             
          statute of limitations on assessment.  We agreed with the                   
          Commissioner, holding:                                                      
                    Under the principles established by the Supreme                   
               Court in Lewis v. Reynolds, 284 U.S. 281 (1932), a                     
               taxpayer's claim for refund must be reduced by the                     
               amount of the correct tax liability for the taxable                    
               year, regardless of the fact that the Commissioner can                 
               no longer assess any deficiency for the taxable year.                  
               * * * [Bachner v. Commissioner, 109 T.C. at 130.]                      
          A literal reading of the statutes in issue avoids this potential            
          for raising issues other than those related to the section 183              
          activity.                                                                   
               Finally it has been suggested that the provisions of section           
          183(e)(4) in combination with the taxpayer's unilateral election            
          under section 183(e) constitute an "agreement" between the                  
          taxpayer and the Commissioner within the meaning of section                 
          6501(c)(4).  But there is no requirement in section 183(e) that             
          the taxpayer and the Commissioner agree and execute a written               
          extension agreement, and no such agreement was executed in this             
          case.  A statutory provision mandating an enlargement of "the               
          statutory period for the assessment of any deficiency" is not an            
          "agreement", and there is nothing in the statute or the                     





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