Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 59

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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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