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Respondent makes no argument in this case that underpayment
interest is not an appropriate factor to be considered in
determining an overpayment of tax. Indeed, respondent’s own
regulations provide:
there can be no overpayment of tax until the entire tax
liability has been satisfied. Therefore, the dates of
overpayment of any tax are the date of payment of the
first amount which (when added to previous payments) is
in excess of the tax liability (including any interest,
addition to the tax, or additional amount) * * * [Sec.
301.6611-1(b), Proced. & Admin. Regs.; emphasis
added.13]
This regulation provides two examples of assessments, payments,
and resulting overpayments. The second example in subpart (c) of
the regulation involves a situation where a deficiency had been
assessed against a corporate taxpayer and the deficiency and
interest had been paid. Subsequently, it was determined that
there was no deficiency. In delineating the amounts and dates of
overpayments, the regulation provides that “The amount of any
12(...continued)
before the taxpayer asked the court to determine an
overpayment of tax, including underpayment interest.
Field Serv. Adv. 2000-12049 (Mar. 24, 2000).
13The estate cites this regulation in its motion. In
respondent’s response to the motion, respondent neither cites to
nor argues against the applicability of this regulation. In
Estate of Baumgardner v. Commissioner, 85 T.C. at 451-452, we
cited the aforementioned regulation in support of our
jurisdiction to consider underpayment interest as part of our
overpayment jurisdiction. In the 19 years following our
Baumgardner opinion, the Commissioner has not modified this
regulatory definition of an “overpayment”.
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