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Petitioner's original basis in the stock of EBS was
approximately $3,500. On the other hand, petitioners claimed a
loss in the amount of $3,989 on their 1990 return. Without
considering any losses claimed prior to 1990, petitioner's bases
in the stock and debt could not have been more than $61 ($3,500
for the stock plus $550 for the debt minus $3,989). We are
confident that any loss claimed prior to 1990 would have exceeded
that amount. Accordingly, petitioners are not entitled to claim
any loss carryovers from EBS for 1991 and 1992.
Overpayments
Petitioners dispute respondent's authority to set off the
claimed overpayments in 1991 and 1992 against petitioner's
outstanding section 6672 liability. Section 6402(a) provides:
SEC. 6402(a). General Rule.--In the case of any
overpayment, the Secretary, within the applicable period of
limitations, may credit the amount of such overpayment,
including any interest allowed thereon, against any
liability in respect of an internal revenue tax on the part
of the person who made the overpayment and shall, subject to
subsections (c) and (d), refund any balance to such
person.[3]
Furthermore, section 6512(b)(4) provides that "The Tax Court
shall have no jurisdiction under this subsection to restrain or
3 Sec. 6402(a) was amended by sec. 3711(a) of the Internal
Revenue Service Restructuring and Reform Act of 1998, Pub. L.
105-206, 112 Stat. 685, 779, to include a reference to subsec.
(e). That amendment applies to refunds payable after Dec. 31,
1999, and is not applicable to this case.
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