- 58 - refund be applied against the unpaid tax liability. After paying the tentative refund, the Commissioner determined that the taxpayers did not sustain the NOL and issued a notice of deficiency for 1985. The taxpayers filed a petition and then filed a motion to dismiss for lack of jurisdiction because there was no “deficiency”. The taxpayers argued that a credit resulting from a tentative carryback adjustment is not a rebate because it did not result from the return showing more tax than was imposed. Baldwin v. Commissioner, supra at 708. We rejected petitioner’s argument and held that the credit was made against the taxpayer’s 1985 tax liability because the amount of tax imposed after the NOL was carried back was less than the amount shown on the return. We therefore concluded that the credit was a rebate under section 6211(b)(2). In Neri v. Commissioner, 54 T.C. 767 (1970), the Commissioner issued tentative refunds on the basis of taxpayers’ applications for tentative carryback adjustments carrying back NOLs sustained in 1963, 1964, and 1965 to 1959, 1961, and 1962, respectively. The Commissioner subsequently issued a notice of deficiency for 1959, 1961, and 1962 because the taxpayers, as shareholders of an S corporation, were required first to apply the NOLs to their gross income in each of the taxable years in which the NOLs were sustained. Id. at 769. We rejected the taxpayers’ contention that the summary assessment procedures werePage: Previous 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 Next
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