Rodney L. Burr - Page 8




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          overpayment of his 1994 taxes is a “fact”, established when                 
          respondent accepted his 1994 return as filed, that this Court               
          must “consider” in redetermining his 1995 deficiency; i.e., that            
          pursuant to section 6214(b) we should credit the $1,759                     
          overpayment for 1994 against his tax liability for 1995.  Section           
          6214(b) does not confer such authority.  While the “fact” that              
          petitioner overpaid his 1994 taxes by $1,759 is undisputed, it              
          does not follow that this overpayment may constitute a payment of           
          tax for 1995 in contravention of the provisions of sections 6402            
          and 6511.  Section 6402 governs the circumstances in which an               
          overpayment in one year may be treated as a payment of tax for              
          the succeeding year; section 6402 and the regulations thereunder            
          condition this treatment on a claim for a credit of the preceding           
          year’s overpayment that is made within the applicable period of             
          limitations.  See secs. 6402(a) and (b), 6511; secs. 301.6402-              
          2(a), 301.6402-3(a)(5), Proced. & Admin. Regs.                              
               Petitioner also contends that respondent asserted an                   
          affirmative defense by taking the position that petitioner’s                
          claim for a credit of his 1994 tax overpayment was time-barred              
          under section 6511.  Accordingly, petitioner argues that                    
          respondent waived such defense when he failed to plead it in his            
          answer as required under Rule 39.  We disagree.                             
               First, if the pleadings are to be strictly construed herein,           
          we have some doubt that petitioner’s pleadings were sufficient to           






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