14- -
In Allen v. United States, 73 AFTR2d 94-1728, 94-1 USTC par.
50,102 (N.D. Ga. 1994), the District Court applied the Lewis v.
Reynolds, supra, case and found that the Commissioner had the
right to reduce the taxpayer's refund by additions to tax after
the expiration of the period of limitations for assessment of
those additions to tax. While it is not necessary to reach the
issue of a setoff after the expiration of the period of
limitations for assessment under the facts in this case, the
rationale of Lewis v. Reynolds, supra, supports respondent's
position in this case.
Petitioner also contends that since respondent abated the
additions to tax, a presumption of correctness should attach to
that abatement. Under section 64044, the Secretary is authorized
"to abate the unpaid portion of the assessment". Respondent's
abatement of the assessment of additions to tax was reversed by a
subsequent entry to the IRS master file account for petitioner.
The abatement was a mere clerical error, which does not carry
4 SEC. 6404. ABATEMENTS.
(a) General Rule.--The Secretary is authorized to abate the
unpaid portion of the assessment of any tax or any liability in
respect thereof, which--
(1) is excessive in amount, or
(2) is assessed after the expiration of the period of
limitations properly applicable thereto, or
(3) is erroneously or illegally
assessed.
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