- 11 - likewise, does not help petitioners in any material respect. His statement was without direct bearing upon whether Mr. Clayton mailed the fourth amended return. The documentary evidence is also unpersuasive. Petitioners produced a cover letter written by Mr. Wulff, which was attached to the third and fifth amended returns. This letter offers very limited support because Mr. Wulff did not mail the letter to respondent but to petitioners. Petitioners, in this case, have not produced credible evidence that the fourth amended return was timely mailed and postmarked. The evidence is simply insufficient to satisfy petitioners' burden of proof regarding the mailing of the fourth amended return. Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933). Without the proper filing of the fourth amended return, petitioners had an overpayment of $65,937 for taxable year 1985. Petitioners further argue respondent was obligated to determine petitioners' correct tax liability when determining a refund or credit. In support, petitioners rely upon Lewis v. Reynolds, 284 U.S. 281 (1932), and Rev. Rul. 81-87, 1981-1 C.B. 580. In Lewis, the Supreme Court held that a taxpayer is entitled to a refund only if he has "overpaid" his tax. Although the statutes authorizing refunds do not specifically empower the Commissioner to reaudit a return whenever repayment is claimed, authority to do so is necessarily implied. An overpayment must result before refund is authorized. Although the statute ofPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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