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We previously determined that petitioner's correct tax
liability for the taxable year 1984 is $4,096. Petitioner's
withholding payments totaled $4,396.95. Petitioner made no other
payments. Therefore, any overpayment due to petitioner cannot be
greater than the amount by which petitioner's tax payments exceed
his proper tax liability for 1984.
Respondent also contends that the doctrine of Lewis v.
Reynolds, supra, applies to the addition to tax under section
6653(a)(1) in the amount of $205 and that any overpayment due
petitioner should be reduced by this amount.8 We agree.
Additions to tax pursuant to section 6653(a)(1) are assessed,
collected, and paid in the same manner as taxes. Sec.
6662(a)(1). While no addition to tax can be assessed for 1984,
the doctrine of Lewis v. Reynolds, supra, permits the retention
of any tax payment "which might have been properly assessed and
demanded." Lewis v. Reynolds, 284 U.S. at 283; Allen v. United
States, 51 F.3d 1012, 1015 (11th Cir. 1995); see also Fisher v.
United States, 80 F.3d 1576, 1580-1581 (Fed. Cir. 1996) (holding
interest barred from assessment by expiration of the statutory
period of limitations may be offset against overpayment); Loftin
& Woodard, Inc. v. United States, 577 F.2d 1206, 1245-1247 (5th
Cir. 1978).
8By conceding that the altered Form 1040 is a valid return,
respondent necessarily concedes that petitioner cannot be liable
for the sec. 6651 addition to tax for failure to file.
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