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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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