Winn-Dixie Stores, Inc. and Subsidiaries - Page 9

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          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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