Marci L. and Carl C. Voigt - Page 10

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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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