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the Commissioner may assess amounts refunded under section 6411
that are in excess of the overassessment attributable to the
carryback. The assessment is made as a deficiency as if it were
due to a mathematical or clerical error appearing on the return
and is not subject to the restrictions of section 6213(b)(2).
The tentative refund paid to petitioner for 1985 was the
subject of the bankruptcy proceedings, discussed infra, and is
not before the Court.
The Bankruptcy Proceedings
In the bankruptcy proceedings, respondent filed an unsecured
priority claim for taxes, interest, and penalties assessed
against petitioner from 1974 through 1980, 1982, 1983, and 1985
through 1991. With respect to 1981 and 1984, respondent sought
to have the bankruptcy court enforce the stipulation of settled
issues or, in the alternative, lift the stay with respect to
those years so respondent could enforce the stipulation in the
Tax Court. Petitioner objected to respondent’s claim with
respect to 1981, 1984, and 1985.
Petitioner was represented in the bankruptcy proceedings by,
among others, David J. Duez, who is not a partner of Messrs.
Newman and Updegraft. Petitioner argued in the bankruptcy
proceeding that the 1981, 1984, and 1985 tentative refunds were
nonrebate refunds that do not fall within the definition of a
“deficiency” under section 6211. Accordingly, petitioner argued,
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