John F. Heyse - Page 7




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          trial.4  Furthermore, the record before us contains insufficient            
          facts to support a finding that petitioner was entitled to relief           
          under either alternative provision.5                                        
               Petitioner argues that he is entitled to a refund because              
          the payment of the deficiency was “involuntary” in that the                 
          liability was satisfied by respondent’s crediting of later years’           
          overpayments to the 1993 deficiency, without notification to or             
          permission by petitioner.  Respondent, however, has discretion to           
          credit overpayments to any outstanding tax liabilities, and the             
          crediting of such an overpayment is treated as if the taxpayer              
          had received a refund and in turn paid the tax liability.  Secs.            
          6402(a), 7422(d); Culpepper-Smith v. United States, supra.  The             
          1993 tax liability has been satisfied, and section 6015(g)(3)               
          clearly prohibits a refund resulting from relief afforded by                
          section 6015(c).                                                            
               Reviewed and adopted as the report of the Small Tax Case               
          Division.                                                                   


          4Petitioner states in his petition that “Taking into account                
          all the facts and circumstances, it is inequitable to hold the              
          Petitioner liable.”  Language similar to this is found in both              
          sec. 6015(b) and (f).  However, petitioner did not specifically             
          refer to either of these provisions, and at trial the focus of              
          petitioner’s argument was on the fact that payment of the 1993              
          tax deficiency was “involuntary”, as discussed infra.                       
          5Petitioner would not be entitled to relief under sec.                      
          6015(f) unless it were shown that, contrary to respondent’s                 
          determination, petitioner is not entitled to relief under sec.              
          6015(c).  Sec. 6015(f)(2).                                                  





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