Elliot G. Steinberg - Page 9




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               Pursuant to the authority conferred by section 6402(a),                
          respondent credited $67,078 of the overpayment by petitioner of             
          his 1973 taxes against his assessed and unpaid tax liability for            
          1975.  Petitioner contends that respondent did not apply the                
          overpayment according to his instructions in the December 1988              
          letter.  However, section 6512(b)(4) clearly restricts the                  
          jurisdiction of this Court to decide that matter because that               
          would constitute a review of a credit made under section 6402.              
               Our holding in this case is consistent with our holding in             
          Winn-Dixie Stores, Inc. v. Commissioner, 110 T.C. 291 (1998).  In           
          that case, the taxpayer agreed to the Commissioner's                        
          determination for certain years before the Court (the present               
          years' underpayments).  The Commissioner and the taxpayer 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 to the taxpayer the prior years'                      
          overpayments, including interest thereon calculated at the                  
          overpayment rate under section 6621(a)(1).  The Commissioner                
          later mailed notices of tax due, including interest calculated at           
          the underpayment rate under section 6621(a)(2) and (c), for the             
          present years' underpayments.  The taxpayer paid the present                
          years' underpayments, together with interest at the underpayment            





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