Samuel and Bernice Boone Trust - Page 2




                                                - 2 -                                                  
                  Samuel Boone and Bernice Boone (trustees), for petitioner.                           
                  Steven M. Webster, for respondent.                                                   


                                        MEMORANDUM OPINION                                             

                  THORNTON, Judge:  This matter is before the Court on                                 
            respondent’s motion to dismiss for lack of jurisdiction.1  As                              
            discussed below, we shall grant respondent’s motion.                                       
                  Unless otherwise indicated, section references are to the                            
            Internal Revenue Code as amended.                                                          
                                             Background                                                
                  On its Form 1041, U.S. Income Tax Return for Estates and                             
            Trusts, for taxable year 1997, petitioner reported income tax                              
            liability of zero and income tax withholding credits of $165,149,                          
            resulting in a refund claim of $165,149.  On December 7, 1998,                             
            respondent issued petitioner a $166,293.04 refund for taxable                              
            year 1997.2  Subsequently, respondent determined the refund had                            
            been erroneously paid because petitioner had not made the income                           
            tax payments for which credits had been claimed.  On March 15,                             
            1999, respondent summarily assessed the previously refunded                                
            amount and mailed petitioner a notice of tax due.  Respondent                              


                  1 The instant case involves the same jurisdictional issue as                         
            Loadholt Trust v. Commissioner, T.C. Memo. 2000-349, also decided                          
            today.                                                                                     
                  2 This amount represents the reported overpayment of                                 
            $165,149 plus interest of $1,144.04.                                                       




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