- 13 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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