Frederic S. Clayton and Marlene B. Clayton - Page 13

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            a refund is claimed, such power does not create an obligation of                             
            respondent to do so.  See United States v. Memphis Cotton Oil                                
            Co., 288 U.S. 62, 70-71 (1933); Taranto v. Commissioner, T.C.                                
            Memo. 1975-372.  We are convinced that section 6402(a) does not                              
            require respondent to use his resources in such a matter before                              
            issuing a refund.  Cf. Clark v. Commissioner, 158 F.2d 851 (6th                              
            Cir. 1946), affg. a Memorandum Opinion of this Court.  Viewing                               
            the facts in total, we are satisfied that respondent was                                     
            justified in issuing a refund in the amount of $65,937.                                      
                  Alternatively, petitioners argue that there was no                                     
            overpayment in taxable year 1985 because respondent should have                              
            treated the additional tax due as part of the amount "shown as                               
            the tax by the taxpayer upon his return" for purposes of section                             
            6211(a)(1)(A).  Petitioners contend that the cover letters and                               
            Mr. Wulff's telephone conversations with respondent's employees                              
            were sufficient to alert respondent as to their additional                                   
            liability.  In other words, petitioners argue that the additional                            
            tax, which they acknowledge was due notwithstanding their failure                            
            to file a return reporting the tax, qualifies as an "amount shown                            
            as the tax by the taxpayer upon his return" within the meaning of                            
            section 6211(a)(1)(A).  We disagree.                                                         
                  Section 6211 defines a deficiency as the amount by which the                           
            correct tax due exceeds the sum of:  (1) The amount shown by the                             
            taxpayer as the tax due on his return if a return was made and                               
            (2) amounts previously assessed or collected without assessment.                             




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