- 9 -
Commissioner, supra at 554-555: "No such restriction exists with
respect to our jurisdiction to determine an overpayment."
Accordingly, we hold that we have jurisdiction over petitioner's
claim that there are "overpayments" for its taxable years 1988
through 1991.5
The next issue is whether petitioner is entitled to partial
summary judgment on its claim that it overpaid interest because
respondent abused his discretion under section 6402(a). Rule
121(b) provides that partial summary judgment may be rendered on
an issue if it is shown "that there is no genuine issue as to any
material fact and that a decision may be rendered as a matter of
law." In deciding whether to grant summary judgment, the factual
materials and inferences drawn from them must be considered in
the light most favorable to the nonmoving party. Bond v.
Commissioner, 100 T.C. 32, 36 (1993); Naftel v. Commissioner, 85
T.C. 527, 529 (1985). Petitioner, as the moving party, has the
burden of proving that no genuine issue exists as to any material
fact and that it is entitled to judgment as a matter of law. Bond
4(...continued)
final.
5The term "overpayment" has been interpreted to mean "any
payment in excess of that which is properly due." Jones v.
Liberty Glass Co., 332 U.S. 524, 531 (1947); Bachner v.
Commissioner, 109 T.C. 125, 128 (1997). In order to determine
the existence of an overpayment, there must first be a
determination of the amount of tax properly due. See Girard
Trust Bank v. United States, 226 Ct. Cl. 366, 369, 643 F.2d 725,
727 (1981).
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