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I. Basis of the Adopted Opinion
The foundation of the adopted opinion is that sections
6402(a) and 6512(b)(4) do not apply to the facts in this case.
Section 6402(a) allows the Commissioner to credit the amount of
an overpayment against “any liability in respect of an internal
revenue tax” and to refund only the balance of that liability.
The adopted opinion would establish that there is a flaw in that
statutory language and that the term “any liability” was not
intended to include interest (whether paid or unpaid, whether
assessed or unassessed) when the interest arises from a
deficiency that is also the subject of an overpayment of tax.
Section 6512(b)(4) provides “The Tax Court shall have no
jurisdiction under this subsection to restrain or review any
credit or reduction made by the Secretary under section 6402.”
Despite section 6512(b)(4), the adopted opinion would find that
the Court may prevent the Commissioner from applying section
6402(a) to offset an unpaid interest liability against an
overpayment determined by the Court when that interest liability
arises in the same year before the Court. This is an issue of
first impression and raises the question why this apparent error
in the statute has never arisen before. Because some version of
section 6402(a) has been part of the internal revenue statutory
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