- 54 -
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).
Page: Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 NextLast modified: May 25, 2011