David E. and Susana V. Judd - Page 9

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         whatever type of liability he chooses.  Wood v. United States,               
         808 F.2d 411, 416 (5th Cir. 1987); Muntwyler v. United States,               
         703 F.2d 1030, 1032 (7th Cir. 1983); O’Dell v. United States, 326            
         F.2d 451, 456 (10th Cir. 1964).  Under the voluntary payment                 
         rule, when a taxpayer who has outstanding tax liabilities                    
         voluntarily makes a payment, the IRS usually will honor a                    
         taxpayer’s request as to how to apply that payment.  In re Ryan,             
         64 F.3d 1516, 1522 (11th Cir. 1995).  However, the Treasury                  
         regulations promulgated under section 6402(a) demonstrate that               
         the IRS does not apply the voluntary payment rule to                         
         overpayments.                                                                
              The regulations do provide that a taxpayer can instruct the             
         IRS to credit his overpayment against the estimated tax for the              
         taxable year immediately succeeding the overpayment.  Sec.                   
         301.6402-3(a)(5), Proced. & Admin. Regs.  However, the                       
         regulations mirror the statute and authorize the IRS to override             
         that election and apply the overpayment against “any outstanding             
         liability for any tax”.  Sec. 301.6402-3(a)(6)(i), Proced. &                 
         Admin. Regs.; see N. States Power Co. v. United States, 73 F.3d              
         764, 767 (8th Cir. 1996) (citing In re Ryan, supra at 1523                   
         (“[Section 6402], plainly gives the IRS the discretion to apply              
         overpayments to any tax liability”)); Pettibone Corp. v. United              
         States, 34 F.3d 536, 538 (7th Cir. 1994) (section 6402(a) “leaves            
         to the Commissioner’s discretion whether to apply overpayments to            






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