Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 58

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          As a result, the Court’s opinion allows the estate to receive a             
          deduction for the amount of interest due, $209,943.54, having               
          paid interest of only $144,947.89, and the adopted opinion orders           
          respondent to forgo offsetting the overpayment refund by the                
          outstanding interest liability, which as a result will never be             
          collected.  Rather than inadvertence, the overpayment computation           
          was the result of the parties’ adherence to a longstanding                  
          practice, followed by parties in many of our cases, to submit               
          agreed computations of overpayments without interest.  The                  
          adopted opinion ignores the parties’ agreed overpayment                     
          computations to reach an incorrect and unjust result.                       
               Indeed, the result reached by the adopted opinion is                   
          contrary to both statutory law and our Rules of Practice and                
          Procedure (Rules).  This is the first instance where this Court             
          has asserted the jurisdiction to overturn the Commissioner’s                
          offset of an overpayment pursuant to section 6402(a) to satisfy             
          an interest assessment.  This Court does not have this asserted             
          jurisdiction, but if it did, the estate should be estopped from             
          successfully avoiding an agreement reached under our Rules that             
          the agreed computation conformed with the Court’s opinion in                
          Estate of Smith v. Commissioner, T.C. Memo. 2001-303, affd. 54              
          Fed. Appx. 413 (5th Cir. 2002), and manipulating the judicial               
          process by taking inconsistent positions to avoid the enforcement           
          of its agreement.                                                           






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