13- -
petitioner in accordance with the decision of this Court and
issued a check to petitioner on November 13, 1989, in the amount
of $186,177.79. Since the "penalties and lien fee" of $39,967.34
were timely assessed and collected, petitioner's reliance on the
period of limitations in section 6502(a) is misplaced, and
petitioner has failed to show that respondent's computation of
the interest includable in the refund payment made to petitioner
for the year 1966 under the decision of this Court involving that
year is incorrect.
Respondent further argues that, in any event, her right to a
setoff is not restricted by the period of limitations. In Lewis
v. Reynolds, 284 U.S. 281, 283 (1932) (quoting Lewis v. Reynolds,
48 F.2d 515, 516 (10th Cir. 1931), the Supreme Court stated with
regard to the Commissioner's power to make a setoff after the
expiration of the period of limitations, that--
"the ultimate question presented for decision, upon a
claim for refund, is whether the taxpayer has overpaid
his tax. This involves a redetermination of the entire
tax liability. While no new assessment can be made,
after the bar of the statute has fallen, the taxpayer,
nevertheless, is not entitled to a refund unless he has
overpaid his tax. The action to recover on a claim for
refund is in the nature of an action for money had and
received, and it is incumbent upon the claimant to show
that the United States has money which belongs to him."
* * * * * * *
Although the statute of limitations may have barred the
assessment and collection of any additional sum, it
does not obliterate the right of the United States to
retain payments already received when they do not
exceed the amount which might have been properly
assessed and demanded.
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