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HOLMES, J., dissenting: I fully agree with the detailed
analysis of Judge Goeke’s lucid dissent. I write separately only
to provide a brief introduction to what has become--unnecessarily
in my view--a very complicated statutory analysis by focusing on
what I see as three fundamental mistakes that the majority makes
today.
The first lies on page 9 of the Court’s opinion, where it
states that what we are deciding is “whether the amount of an
‘overpayment’ must include consideration of any underpayment
interest owed by a taxpayer at the time of the overpayment
calculation.” (Emphasis added.) What follows is the statutory
interpretation that Judge Goeke analyzes. However, I don’t think
this is the right question. What we should be reviewing here is
neither a term used in the Code nor a regulation, but only a term
used in an agreed computation under Rule 155.
Most cases that we partly decide in a taxpayer’s favor
require computing exactly how much is owed by whom for the tax
years in question. This computation is nothing more than a
complicated math problem, and one we leave for the parties them-
selves to figure out. “If the parties are in agreement as to the
amount of the deficiency or overpayment to be entered as the
decision * * *, then they, or either of them, shall file promptly
with the Court * * * a computation showing the amount of the
deficiency, liability, or overpayment and that there is no
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