Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 10

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          underpayment interest owed by a taxpayer at the time of the                 
          overpayment calculation.  Stated differently, can there be an               
          “overpayment” in an amount that has not been reduced by unpaid              
          underpayment interest?                                                      
               1.  What Constitutes an Overpayment?                                   
               The Code does not have an all-inclusive definition of an               
          “overpayment”.  Section 6401 provides examples of certain types             
          of overpayments.  For instance, the term “overpayment” includes             
          “that part of the amount of the payment of any * * * tax which is           
          assessed or collected after the expiration of the period of                 
          limitation properly applicable thereto.”  Sec. 6401(a).  On the             
          other hand, section 6401(c) provides that an “amount paid as tax            
          shall not be considered not to constitute an overpayment solely             
          by reason of the fact that there was no tax liability in respect            
          of which such amount was paid.”  However, these specific                    
          provisions do not provide a general definition of the term.  The            
          Supreme Court in Jones v. Liberty Glass Co., 332 U.S. 524, 531              
          (1947), has defined an overpayment as follows:                              
               we read the word “overpayment” in its usual sense, as                  
               meaning any payment in excess of that which is properly                
               due.  Such an excess payment may be traced to an error                 
               in mathematics or in judgment or in interpretation of                  
               facts or law.  And the error may be committed by the                   
               taxpayer or by the revenue agents.  Whatever the                       
               reason, the payment of more than is rightfully due is                  
               what characterizes an overpayment.                                     
          See also United States v. Dalm, 494 U.S. 596, 609 n.6 (1990)                
          (“The commonsense interpretation is that a tax is overpaid when a           





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