Ronald C. Bachner - Page 7

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          the literal terms of section 6401(a).  Here, as explained infra,            
          the withheld tax was deemed paid on April 15, 1985, well within             
          the period of limitations, and respondent is no longer seeking to           
          make any assessments or collections.                                        
               The term "overpayment" has been interpreted to mean "any               
          payment in excess of that which is properly due."  Jones v.                 
          Liberty Glass Co., 332 U.S. 524, 531 (1947).  In United States v.           
          Dalm, 494 U.S. 596, 609 n.6 (1990), the Supreme Court again                 
          addressed the meaning of the term "overpayment", stating:  "The             
          commonsense interpretation is that a tax is overpaid when a                 
          taxpayer pays more than is owed, for whatever reason or no reason           
          at all."  In Estate of Baumgardner v. Commissioner, supra at 450,           
          we stated:                                                                  

               The Liberty Glass Co. generic definition of                            
               'overpayment' is in reference to section 322 of the                    
               Internal Revenue Code of 1939. Section 322(d) of the                   
               Internal Revenue Code of 1939, in pertinent part,                      
               included the following language which is substantially                 
               similar to its successor, section 6512(b):  'If the                    
               [Tax Court] finds that there is no deficiency and                      
               further finds that the taxpayer has made an overpayment                
               of tax * * *, the [Tax Court] shall have jurisdiction                  
               to determine the amount of such overpayment.'                          

          The Liberty Glass Co. definition applies in our determination of            
          an overpayment as provided by section 6512(b).  It follows that             
          in order to have an overpayment, petitioner must have made a                
          "payment" of tax for 1984 in excess of the amount which is                  
          properly due.                                                               




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