Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 17

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               Respondent makes no argument in this case that underpayment            
          interest is not an appropriate factor to be considered in                   
          determining an overpayment of tax.  Indeed, respondent’s own                
          regulations provide:                                                        
               there can be no overpayment of tax until the entire tax                
               liability has been satisfied.  Therefore, the dates of                 
               overpayment of any tax are the date of payment of the                  
               first amount which (when added to previous payments) is                
               in excess of the tax liability (including any interest,                
               addition to the tax, or additional amount) * * *  [Sec.                
               301.6611-1(b), Proced. & Admin. Regs.; emphasis                        
               added.13]                                                              
          This regulation provides two examples of assessments, payments,             
          and resulting overpayments.  The second example in subpart (c) of           
          the regulation involves a situation where a deficiency had been             
          assessed against a corporate taxpayer and the deficiency and                
          interest had been paid.  Subsequently, it was determined that               
          there was no deficiency.  In delineating the amounts and dates of           
          overpayments, the regulation provides that “The amount of any               


               12(...continued)                                                       
               before the taxpayer asked the court to determine an                    
               overpayment of tax, including underpayment interest.                   
          Field Serv. Adv. 2000-12049 (Mar. 24, 2000).                                
               13The estate cites this regulation in its motion.  In                  
          respondent’s response to the motion, respondent neither cites to            
          nor argues against the applicability of this regulation.  In                
          Estate of Baumgardner v. Commissioner, 85 T.C. at 451-452, we               
          cited the aforementioned regulation in support of our                       
          jurisdiction to consider underpayment interest as part of our               
          overpayment jurisdiction.  In the 19 years following our                    
          Baumgardner opinion, the Commissioner has not modified this                 
          regulatory definition of an “overpayment”.                                  




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