Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 55

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               Moreover, in enforcing our decision of an overpayment under            
          section 6512(b)(2), we are not restraining or reviewing any                 
          credit or reduction made by respondent under section 6402.                  
          Instead, we are simply enforcing our decision that the estate has           
          made an overpayment of tax.  Because underpayment interest that             
          is properly due must be considered in determining the amount of             
          an overpayment, it follows that we have jurisdiction to order a             
          refund of the overpayment consistent with our decision and not              
          reduced by underpayment interest that has already been factored             
          into our decision.                                                          
               Inasmuch as the underpayment interest in question had                  
          already been computed and assessed when we entered our                      
          overpayment decision, there is no compelling practical reason why           
          the underpayment interest should not have been included in the              
          overpayment calculation.  Indeed, in computing the estate’s                 
          estate tax liability, respondent had allowed the underpayment               
          interest as a section 2053 estate tax deduction.  To be                     
          consistent, the overpayment computation should include                      
          consideration of this assessed underpayment interest, as the                
          majority opinion holds.                                                     
          Confining the Majority Opinion Holding to Its Facts                         
               Properly confined to its procedural and factual context,               
          then, and notwithstanding some rather open-ended language in the            
          majority opinion, its holding is that the assessed underpayment             






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