Steven Jay Wolk - Page 9

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          Application of the 1987 Overpayment                                         
               The crux of petitioner’s argument is that if respondent had            
          applied the 1987 overpayment, generated from the 1989 and 1990              
          NOL’s, “as an estimated tax payment toward any tax liability due            
          on my 1990 return and later years” as he requested in the July              
          30, 1992, letter, the tax liabilities for 1991, 1992, and 1996              
          would have been paid.  We review respondent’s determination de              
          novo, as the validity of the underlying tax liability, “i.e., the           
          amount unpaid after application of credits to which petitioner is           
          entitled,” is properly at issue.  See Landry v. Commissioner, 116           
          T.C. 60, 62 (2001).                                                         
               Section 6401(b)(1) provides:  “If the amount allowable as              
          credits * * * exceeds the tax imposed * * * the amount of such              
          excess shall be considered an overpayment.”  The Commissioner may           
          first credit any overpayment against “any outstanding liability             
          for any tax * * * owed by the taxpayer making the overpayment”.             
          Sec. 301.6402-3(a)(6)(i), Proced. & Admin. Regs.  Any remaining             
          overpayment may be applied to the estimated tax but only “for the           
          taxable year immediately succeeding the taxable year for which              
          such return (or amended return) is filed.”  Sec. 301.6402-                  
          3(a)(5), Proced. & Admin. Regs. (emphasis added); see also sec.             
          6402(b).  The Commissioner shall refund any balance of the                  
          overpayment to the taxpayer.  Sec. 6402(a).                                 








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