- 59 - 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 statutoryPage: Previous 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 Next
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