James E. Brown - Page 10

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          from assessing a deficiency in petitioner's 1990 tax.                       
          Petitioner's argument seems to be that his position as to the               
          amount received from the civil action was fully disclosed on his            
          return and respondent refunded the income taxes withheld on the             
          basis of the return.                                                        
               However, petitioner's argument is without merit.  Respondent           
          is not estopped from determining a deficiency merely because she            
          had previously accepted petitioner's return and issued a refund.            
          Gordon v. United States, 757 F.2d 1157 (11th Cir. 1985); Warner             
          v. Commissioner, 526 F.2d 1 (9th Cir. 1975), affg. T.C. Memo.               
          1974-243; Baasch v. Commissioner, T.C. Memo. 1991-134, affd.                
          without published opinion 962 F.2d 4 (2d Cir. 1992).                        
          Furthermore, we note that refunds of alleged excess withholdings            
          without prior audit, are a matter of grace to the taxpayer, made            
          in consequence of an amount due as shown on his return, and are             
          subject to final audit and adjustment, and hence are not final              
          determinations so as to preclude subsequent adjustment.  Clark v.           
          Commissioner, 158 F.2d 851 (6th Cir. 1946), affg. a Memorandum              
          Opinion of this Court dated Apr. 1, 1946; Owens v. Commissioner,            
          50 T.C. 577 (1968).                                                         
               In sum, petitioner's motion for summary judgment will                  
          be denied as to all issues.  To reflect the foregoing,                      
                                             An appropriate order will be             
                                             issued.                                  






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