Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 11

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          taxpayer pays more than is owed, for whatever reason or no reason           
          at all.”); Sunoco, Inc. & Subs. v. Commissioner, 122 T.C. 88                
          (2004); Bachner v. Commissioner, 109 T.C. 125 (1997), affd.                 
          without published opinion 172 F.3d 859 (3d Cir. 1998); Estate of            
          Baumgardner v. Commissioner, 85 T.C. 445, 450 (1985).  Obviously,           
          as we have previously observed:  “In order to determine the                 
          existence of an overpayment, there must first be a determination            
          of the amount of tax properly due.”  Winn-Dixie Stores, Inc. &              
          Subs. v. Commissioner, 110 T.C. 291, 295 n.5 (1998) (citing                 
          Girard Trust Bank v. United States, 226 Ct. Cl. 366, 369, 643               
          F.2d 725, 727 (1981)).  This leads to the question of the meaning           
          of the term “tax”.                                                          
               The Code generally treats underpayment interest as tax.                
          Section 6601(e)(1) provides:                                                
                    SEC. 6601(e).  Applicable Rules.–-Except as                       
               otherwise provided in this title--                                     
                    (1) Interest treated as tax.–-Interest prescribed                 
               under this section on any tax shall be paid upon notice                
               and demand, and shall be assessed, collected, and paid                 
               in the same manner as taxes.  Any reference in this                    
               title (except subchapter B of chapter 63, relating to                  
               deficiency procedures) to any tax imposed by this title                
               shall be deemed also to refer to interest imposed by                   
               this section on such tax.  [Emphasis added.]                           












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