Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 54

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               More fundamentally, the majority opinion is a natural                  
          application of the widely accepted definition of an overpayment             
          as “any payment in excess of that which is properly due.”  Jones            
          v. Liberty Glass Co., 332 U.S. 524, 531 (1947).  There would seem           
          to be no question that assessed underpayment interest is                    
          “properly due”.  There is no question in this case about the                
          other half of the equation; i.e., the amount of the taxpayer’s              
          payment.  Thus, a straightforward application of the Supreme                
          Court’s definition of overpayment clearly supports the result in            
          the majority opinion.                                                       
               I agree with the majority opinion that sections 6402(a) and            
          6512(b)(4) do not demand a different result.                                
               Section 6402(a) authorizes the Secretary to credit an                  
          overpayment against “any liability”.  I agree with the majority             
          opinion that once we decide that there is an overpayment of tax,            
          properly taking into account assessed underpayment interest,                
          there is no longer any separate liability for the assessed                  
          underpayment interest against which the overpayment might be                
          credited; rather, any liability for the assessed underpayment               
          interest must be subsumed in the overpayment, if our final                  
          decision is to be respected and given effect.                               

               5(...continued)                                                        
          (exclusive of interest), and owes assessed underpayment interest            
          of $30,000.  I believe this taxpayer has a $10,000 underpayment,            
          rather than a $20,000 overpayment (as would be indicated if the             
          assessed interest were omitted from the calculation).                       





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