Rodney L. Burr - Page 5




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          T.C. 291, 295 (1998).  Respondent issued notices of deficiency              
          containing determinations that petitioner is liable for                     
          deficiencies in income tax for 1995 and 1996; petitioner filed a            
          timely petition with this Court contesting respondent’s                     
          determinations.  Accordingly, this Court has jurisdiction to                
          redetermine the amount of petitioner’s deficiencies for 1995 and            
          1996, and to determine whether petitioner has an overpayment for            
          either year.                                                                
               Respondent argues that petitioner does not have an                     
          overpayment for 1995 because the credit petitioner seeks for his            
          1994 overpayment was time-barred when petitioner first claimed              
          it.  Petitioner argues that his 1994 overpayment must be taken              
          into account when determining whether he has an overpayment for             
          1995 because respondent accepted his 1994 return, claiming a                
          credit for such overpayment, as filed.                                      
               When a taxpayer’s payments, including allowable credits for            
          income taxes withheld from wages and the prior year’s                       
          overpayment, exceed the total tax imposed for the year there is             
          an overpayment.  Secs. 31(a), 35, 6401(b)(1), 6402(b); see also             
          Bachner v. Commissioner, 109 T.C. 125, 128 (1997) (interpreting             
          “overpayment” to mean any payment of tax in excess of that which            
          is properly due), affd. without published opinion 172 F.3d 859              
          (3d Cir. 1998).  It follows that in order for this Court to find            
          an overpayment for petitioner’s 1995 tax year, we must find that            






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