Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 9

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          assessed but unpaid interest pursuant to section 6402.  This                
          resulted in the May 13, 2002, refund of $210,467.35, which                  
          consisted of $153,510.41 ($238,847.24 minus $85,336.83) plus                
          interest on the $153,510.41.  Respondent argues that pursuant to            
          section 6402(a) he is entitled to credit part of the $238,847.24            
          overpayment against interest that accrued on the unpaid estate              
          tax for the period before the estate’s $646,325.76 payment on               
          March 31, 1998.  Neither party cites any caselaw to support their           
          respective positions.  Both parties have submitted written                  
          arguments in support of their positions, and both state that they           
          do not request a hearing on this matter.                                    
               The parties stipulated that our decision, that the estate              
          had an overpayment of $238,847.24, was in accordance with our               
          opinion in Estate of Smith v. Commissioner, T.C. Memo. 2001-303.            
          The decision was affirmed by the Court of Appeals for the Fifth             
          Circuit.  See Estate of Smith v. Commissioner, 54 Fed. Appx. 413            
          (5th Cir. 2002).  Both parties agree that our opinion and                   
          decision are now final.  Respondent, nevertheless, argues that he           
          was entitled to refund less than the $238,847.24 overpayment                
          amount, by applying $85,336.83 of that overpayment amount to                
          assessed and unpaid underpayment interest which apparently he did           
          not factor into his computation of the overpayment amount that is           
          in our final decision.  We must first decide whether the amount             
          of an “overpayment” must include consideration of any                       






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