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We assume that petitioner’s argument is that, in determining
deficiencies in tax for 1996 and 1997, respondent was required to
give petitioner credit for the 1996 and 1997 remittances pursuant
to section 6211(a)(1)(B) (amounts previously assessed or
collected without assessment as a deficiency). However,
according to transcripts of petitioner’s accounts with respondent
for the audit years, to which the parties have stipulated,
respondent had not, prior to determining deficiencies for 1996
and 1997, assessed amounts corresponding to the 1996 and 1997
remittances, as a deficiency or otherwise. Furthermore,
respondent did not “collect” such amounts as a deficiency;
indeed, at the time the 1996 and 1997 remittances were received
by respondent, petitioner had filed no returns for those years,
and respondent had not yet determined any deficiencies in tax for
those years. See, e.g., Malachinski v. Commissioner, T.C. Memo.
1999-182, affd. 268 F.3d 497 (7th Cir. 2001). Respondent, thus,
properly disregarded the 1996 and 1997 remittances in determining
the deficiencies for those years.3
3 We note that respondent’s erroneous postnotice
assessments of the 1996 and 1997 deficiencies similarly do not
constitute “amounts previously assessed * * * as a deficiency” to
be taken into account under sec. 6211(a)(1)(B) in determining the
deficiencies for those years. See Mitchell v. Commissioner, 51
T.C. 641, 649-650 (1969) (premature assessments of deficiencies
were void and therefore are not taken into account under sec.
6211, even though the Commissioner did not abate such assessments
until after the petition was filed), revd. on other grounds 430
F.2d 1 (5th Cir. 1970), revd. 403 U.S. 190 (1971). Nor does the
refund improvidently made by respondent for 1996 affect the
(continued...)
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