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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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