Robert E. Wadlow and Connie V. Wadlow - Page 35




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          overpayment jurisdiction regarding the same year.  See                      
          Commissioner v. Lundy, 516 U.S. 235 (1996).6                                
               When it enacted section 183(e)(4), Congress limited the                
          effect of the section 183(e)(4) extension to assessments                    
          attributable to section 183 activity.  However, if the section              
          183(e)(4) extension is construed to also apply to refund claims,            
          unintended consequences may arise.  In a refund context, it is              
          possible that matters other than the putative section 183                   
          activity could be placed in issue by the Commissioner, even                 
          though such matters would be time barred for purposes of                    
          assessing a deficiency.  For example, in Bachner v. Commissioner,           
          109 T.C. 125 (1997), the taxpayer filed a petition in this Court            
          contesting a notice of deficiency and claiming an overpayment of            
          all taxes withheld from his wages.  The assessment of the                   
          deficiency determined by the Commissioner was barred by the                 
          statute of limitations.  Nevertheless, the Commissioner argued              
          that any overpayment was restricted to the excess of the amount             


               6Conversely, in Barton v. Commissioner, 97 T.C. 548 (1991),            
          we held that statutes governing our overpayment jurisdiction gave           
          us authority to determine whether the taxpayer was liable for               
          sec. 6621(c) increased interest, whereas in White v.                        
          Commissioner, 95 T.C. 209 (1990), we held that we lacked                    
          deficiency jurisdiction to determine whether a taxpayer was                 
          liable for sec. 6621(c) increased interest.  Those different                
          outcomes were based on the literal differences between the                  
          provisions of the Code controlling our jurisdiction over                    
          overpayments and deficiencies.                                              





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