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withholding credit was included in that check, then petitioners
have yet to pay the IRS (and the IRS would be entitled to collect
from them) $1,500 ($1,725 minus $225) of the $2,396 deficiency
(plus interest). In short, even if petitioners’ allegations
about their nonreceipt of the disputed refund check were assumed
to be true, there would be no “payment in excess of that which is
properly due.” Jones v. Liberty Glass Co., supra at 531.
Accordingly, petitioners are not in a position to invoke our
overpayment jurisdiction.
In conclusion, because petitioners’ claim with respect to
the disputed refund check cannot affect the amount of the
deficiency otherwise agreed upon and cannot in these
circumstances give rise to a claim for an overpayment, there
remains no material issue of fact relevant to disposing of this
case. Accordingly, we must grant respondent’s motion for entry
of decision.5
An order granting respondent’s
motion will be entered.
5 Although we are unable to address petitioners’ claim
regarding the disputed refund check, they are not without a
remedy. They may pay the assessed deficiency, file a claim for
refund with the Internal Revenue Service, and if the claim is
denied, sue for a refund in the Federal District Court or the
Court of Federal Claims.
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Last modified: May 25, 2011