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We do not think that sections 6402 and 6512(b)(4)
contemplate the situation presented in this case. A more logical
interpretation of sections 6402 and 6512(b)(4) is that this Court
may not restrain or review the Commissioner’s section 6402(a)
application of an overpayment amount to tax liabilities other
than those which were the subject of the overpayment decision.
See, e.g., Savage v. Commissioner, 112 T.C. 46 (1999). Our
interpretation is buttressed by the language of section 6402(a),
which gives the Secretary the power to “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”. Before section 6402 comes
into play, there must be an overpayment of a specific tax, and
the amount of that overpayment must be calculated by determining
the proper amount of tax and determining the amount by which
payments exceed the proper tax. As we have held above, the
proper amount of tax for purposes of an overpayment includes
underpayment interest.
Section 6512(b)(2), which forms the basis of our
jurisdiction to order the refund of an overpayment provides:
(2) Jurisdiction to enforce.--If, after 120 days
after a decision of the Tax Court has become final, the
Secretary has failed to refund the overpayment
determined by the Tax Court, together with the interest
thereon as provided by subchapter B of chapter 67, then
the Tax Court, upon motion by the taxpayer, shall have
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