Edward Turney Savage - Page 7




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          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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