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340 (7th Cir. 1995); Groetzinger v. Commissioner, 69 T.C. 309,
312 (1977); sec. 301.6211-1(f), Proced. & Admin. Regs.
Application of the foregoing statutory provisions to an
erroneous refund requires a determination of the basis of the
refund, i.e., is it a rebate within the meaning of section
6211(b)(1)? The answer to this question depends upon what the
refund herein represents. If it is a refund related to the
recalculation of petitioner's tax liability, then it constitutes
a rebate. If it is unrelated to a recalculation of petitioner's
tax liability, then it is properly characterized as a nonrebate
refund. See O'Bryant v. United States, supra, wherein the
foregoing dichotomy is set forth; see also Clark v. United
States, 63 F.3d 83 (1st Cir. 1995); Groetzinger v. Commissioner,
supra at 315.
In the instant case, respondent has accepted the amount
shown as tax on the return as the correct amount of tax imposed.
She is not seeking to increase the amount of that tax. The
amount of the refund check was the amount by which the payments
exceeded the amount of tax shown on the return, plus interest.
The refund was not made on the ground that the tax imposed was
less than the amount of tax shown; therefore, it is not a rebate.
The amount of the deficiency as defined in section 6211 is,
therefore, zero. Thus, respondent cannot seek an increased
deficiency in order to recover the refund.
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