Sunoco, Inc. and Subsidiaries - Page 18

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             section 6512(b) includes an overpayment composed of                      
             interest on underpayments computed under section 6601.                   
             Respondent also concedes that the underpayment interest at               
             issue in this case is indistinguishable from the interest                
             that was at issue in Estate of Baumgardner.  Respondent’s                
             motion papers do not address the fact that it is impossible              
             to exercise jurisdiction over petitioner’s overpayment                   
             claims composed of underpayment interest, in accordance                  
             with our Opinion in Estate of Baumgardner, unless we also                
             have jurisdiction to determine an overpayment composed of                
             overpayment interest.                                                    
                  The issue in this case is whether petitioner’s                      
             overpayment claims based upon the amount of overpayment                  
             interest allowed by respondent involve an “overpayment”                  
             within the meaning of section 6512(b).  There is no                      
             definition of the term “overpayment” in the Code, but in                 
             Jones v. Liberty Glass Co., 332 U.S. 524, 531 (1947),                    
             the Supreme Court defined the term for purposes of the                   
             statutory predecessor of section 6512(b) as “any payment                 
             in excess of that which is properly due.”  The Supreme                   
             Court said:                                                              

                  we read the word “overpayment” in its usual                         
                  sense, as meaning any payment in excess of that                     
                  which is properly due.  Such an excess payment                      
                  may be traced to an error in mathematics or in                      
                  judgment or in interpretation of facts or law.                      

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