David E. and Susana V. Judd - Page 8

                                        - 7 -                                         
              b.   The Right of Setoff Under Section 6402(a)                          
              The IRS’s right to set off derives from section 6402(a),                
         which permits the IRS to set off any existing tax deficiencies               
         against any tax refunds due the taxpayer.  Section 6402(a)                   
         provides:                                                                    
              In the case of any overpayment, the Secretary, within the               
              applicable period of limitations, may credit the amount of              
              such overpayment, including any interest allowed thereon,               
              against any liability in respect of an internal revenue tax             
              on the part of the person who made the overpayment and                  
              shall, subject to subsections (c) and (d), refund any                   
              balance to such person.[3]                                              
              Effectively, section 6402(a) provides that a party is                   
         entitled to a tax refund only of the amount which exceeds any                
         outstanding tax liabilities.  In re Davis, 889 F.2d 658, 661 (5th            
         Cir. 1989); Kabbaby v. Richardson, 520 F.2d 334 (5th Cir. 1975);             
         United States v. Rochelle, 363 F.2d 225, 232-233 (5th Cir. 1966).            
              Petitioners contend that respondent could not apply the                 
         overpayment of their voluntary 1995 estimated taxes to their                 
         outstanding 1985 tax liability because on their 1995 return                  
         petitioners directed that the overpayment should be applied to               
         their 1996 estimated taxes.                                                  
              When a taxpayer makes voluntary payments to the IRS, he or              
         she has a right to direct the application of those payments to               

               3Sec. 6402(a) was amended by the Internal Revenue Service              
          Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.                 
          3711(a), 112 Stat. 779, to include a reference to subsec. (e).              
          That amendment applies to refunds payable after Dec. 31, 1999,              
          and is not applicable to this case.                                         




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: May 25, 2011