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this omission. The majority opinion rejects respondent’s
argument and grants the estate’s motion to enforce our
overpayment determination.
Inclusion of Assessed Interest in Overpayment Determination
Insofar as it addresses the treatment of assessed
underpayment interest, the majority opinion is a logical
extension of Estate of Baumgardner v. Commissioner, 85 T.C. 445
(1985), which we have followed consistently for nearly 20 years.
Estate of Baumgardner held that “overpayment”, within the meaning
of section 6512(b)(1), includes assessed and paid interest. In
Estate of Baumgardner, this Court concluded that because the
interest on an estate tax deficiency had been assessed, we could
exercise jurisdiction and decide the correct amount of interest
to arrive at the correct amount of net overpayment. Although
Estate of Baumgardner, unlike the instant case, involved interest
that was paid prior to the overpayment determination, I do not
believe that distinction warrants a different result. It follows
from Estate of Baumgardner and its progeny that an overpayment
should also reflect assessed but unpaid underpayment interest.
It would make no sense to award an overpayment that includes
assessed and paid interest while ignoring interest that has been
assessed but remains unpaid.5
5 For example, assume a simple hypothetical: The taxpayer
makes payments of $100,000, has a tax liability of $80,000
(continued...)
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