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overpayment of his 1994 taxes is a “fact”, established when
respondent accepted his 1994 return as filed, that this Court
must “consider” in redetermining his 1995 deficiency; i.e., that
pursuant to section 6214(b) we should credit the $1,759
overpayment for 1994 against his tax liability for 1995. Section
6214(b) does not confer such authority. While the “fact” that
petitioner overpaid his 1994 taxes by $1,759 is undisputed, it
does not follow that this overpayment may constitute a payment of
tax for 1995 in contravention of the provisions of sections 6402
and 6511. Section 6402 governs the circumstances in which an
overpayment in one year may be treated as a payment of tax for
the succeeding year; section 6402 and the regulations thereunder
condition this treatment on a claim for a credit of the preceding
year’s overpayment that is made within the applicable period of
limitations. See secs. 6402(a) and (b), 6511; secs. 301.6402-
2(a), 301.6402-3(a)(5), Proced. & Admin. Regs.
Petitioner also contends that respondent asserted an
affirmative defense by taking the position that petitioner’s
claim for a credit of his 1994 tax overpayment was time-barred
under section 6511. Accordingly, petitioner argues that
respondent waived such defense when he failed to plead it in his
answer as required under Rule 39. We disagree.
First, if the pleadings are to be strictly construed herein,
we have some doubt that petitioner’s pleadings were sufficient to
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