Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 19

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          the amount by which payments exceed the tax, including any                  
          underpayment interest.16                                                    
               2.  Sections 6402(a) and 6512(b)(4)                                    
               In his response, respondent explains that the estate’s                 
          refund is less than the $238,847.24 overpayment amount, because             
          section 6402(a) entitled him to apply part of the $238,847.24 to            
          assessed but unpaid underpayment interest.  Section 6402(a)                 
          provides:                                                                   
               SEC. 6402.  AUTHORITY TO MAKE CREDITS OR REFUNDS.                      
                    (a) General Rule.--In the case of any overpayment,                
               the Secretary, within the applicable period of                         
               limitations, may credit the amount of such overpayment,                
               including any interest allowed thereon, against any                    
               liability in respect of an internal revenue tax on the                 
               part of the person who made the overpayment and shall,                 
               subject to subsections (c), (d), and (e) refund any                    
               balance to such person.                                                
               Respondent cites only section 6402 and does not cite or rely           
          on section 6512(b)(4).  However, we address the application of              
          both sections 6402 and 6512(b)(4).  Section 6512(b)(4) provides:            
                    (4) Denial of jurisdiction regarding certain                      
               credits and reductions.--The Tax Court shall have no                   
               jurisdiction under this subsection to restrain or                      
               review any credit or reduction made by the Secretary                   
               under section 6402.                                                    


               16In field service advice, the Chief Counsel’s National                
          Office states:                                                              
               At the time of the overpayment, previous payments of                   
               tax and previous payments of interest merge to become                  
               the refundable amount of the overpayment, regardless of                
               their previous designation as tax or interest.  [Field                 
               Serv. Adv. 2000-12049 (Mar. 24, 2000).]                                




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