- 7 -
1993). In that case, the Court of Appeals for the Second Circuit
indicated that a procedurally valid assessment for a year not
before the Tax Court generally provides a proper basis for the
application of a tax overpayment and precludes jurisdiction by
the Tax Court to decide the merits of the assessment. Id. at
616-617; see also Moretti v. Commissioner, 77 F.3d 637, 642 (2d
Cir. 1996). In the case before us, petitioner does not contest
the timeliness or validity of the assessments for 1990 and 1991
as a procedural matter. Petitioner seeks rather to have this
Court decide the merits of those assessments. Even the Court of
Appeals' opinion in Belloff, which predates section 6412(b)(4),
indicates that we lack jurisdiction to review that matter.
The present case is distinguishable from Winn-Dixie Stores,
Inc. v. Commissioner, supra. In that case, the taxpayer had
agreed to the Commissioner's determination for certain years
before the Court (the present years' underpayments). The
Commissioner and the taxpayer had also agreed as to the
overpayments for certain years not before the Court (the prior
years' overpayments). The taxpayer requested that the
Commissioner offset the prior years' overpayments against the
present years' underpayments. However, the Commissioner refunded
the prior years' overpayments, including interest thereon
calculated at the overpayment rate under section 6621(a)(1), to
the taxpayer. The Commissioner later mailed notices of tax due,
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