Elliot G. Steinberg - Page 10




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          rate.  The taxpayer in the case pending before this Court for the           
          present years then claimed that the Commissioner's failure to               
          offset, pursuant to section 6402(a), caused the taxpayer to                 
          overpay interest for the years before the Court (the present                
          years' overpayments).5                                                      
               The issue in Winn-Dixie Stores, Inc. was whether the                   
          Commissioner abused his authority by failing to offset the prior            
          years' overpayments against the present years' underpayments.               
          The Commissioner argued that, pursuant to section 6512(b)(4),               
          this Court did not have jurisdiction to decide that matter.                 
               The Court agreed that, under section 6512(b)(4), the Court             
          does not have authority to restrain or review any credit or                 
          reduction made by the Commissioner under section 6402.  However,            
          the Court held that, under section 6512(b)(1), this Court has               
          jurisdiction to find that there is a deficiency in tax, or to               
          find that there is no deficiency in tax, and, in either                     
          situation, the Court has jurisdiction to determine whether there            
          has been an overpayment.  The Court further pointed out that, in            
          connection with a deficiency determination, the amount of                   


               5    Interest on the present years' underpayments was                  
          affected because there is no net interest due for the period of             
          mutual indebtedness if the Commissioner exercises his authority             
          to offset under sec. 6402(a).  See sec. 6601(f).  However, there            
          is net interest due if there is no offset.  Net interest results            
          in this instance because the rate for calculating interest on               
          overpayments is less than the rate for calculating interest on              
          underpayments.  See sec. 6621(a).                                           




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