Robert Newstat - Page 23

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               Here, respondent issued to petitioner a notice of deficiency           
          on October 14, 1992, with respect to his 1985 taxable year, and             
          petitioner instituted a case for redetermination in this Court.             
          That case was concluded without trial by entry of a stipulated              
          decision on December 20, 1995.  The decision provided that there            
          was “no deficiency in income tax due from, nor overpayment due              
          to, the petitioner for the taxable year 1985”.                              
               Now, however, petitioner in essence seeks to argue that he             
          overpaid his taxes for 1985.  If petitioner’s reported liability            
          of $187,911 was never validly assessed, then the taxes would not,           
          as a legal matter, be considered owed by or due from petitioner.            
          As a result, the $66,747 paid by petitioner for 1985 through                
          withholding and credited to that liability would constitute an              
          overpayment.  For tax purposes, “overpayment” is typically                  
          defined in its usual sense as “any payment in excess of that                
          which is properly due.”  Jones v. Liberty Glass Co., 332 U.S.               
          524, 531 (1947); see also Estate of Smith v. Commissioner, 123              
          T.C. 15, 21 (2004).  Petitioner could have made this challenge              
          during the earlier Tax Court proceeding and did not do so.  This            
          Court has jurisdiction to determine overpayments in the context             
          of deficiency proceedings, and the cause of action or claim in a            
          deficiency proceeding thus encompasses the amount of tax, if any,           
          that a party is required to pay for the taxable period under                








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