Joseph Paul Freije - Page 28

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         remittances from other years to the taxpayer's account for the               
         year of the refund, without having made another assessment.  The             
         Court of Appeals concluded that, since the assessment had been               
         extinguished by the taxpayer's payment, the Commissioner could               
         not employ his summary collection powers in the absence of an                
         assessment, but instead had to recover the erroneous refund                  
         through an erroneous refund action under section 7405.18                     
              Respondent has applied $6,500 in 1999 remittances to the                
         Freijes' 1997 account in an effort to recover the erroneously                
         refunded $5,513 (plus interest, presumably).  Under O'Bryant, he             
         may not do so.  Instead, these 1999 undesignated remittances,                
         under respondent's then-applicable procedures, see Rev. Rul. 73-             
         305, supra, should have been applied to satisfy outstanding                  
         assessments for 1998.  Had the 1998 assessments been thereby                 
         satisfied, presumably some portion of these 1999 remittances                 
         would have been available for application to the Freijes' 1999               
         account.  Consequently, we conclude that the levies for 1998 and             
         1999 should not be sustained in their present form, as the unpaid            
         tax for each year may be affected by the proper application of               
         the $6,500 in 1999 remittances by the Freijes.                               




               18 The Court of Appeals declined to decide whether, as the             
          Commissioner contended, he had a further option of recovering the           
          refund through a suit begun within the limitations period of sec.           
          6501, without regard to sec. 7405.                                          





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