James Wilson Richmond, Jr. - Page 16

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          made the overpayment” and, subject to certain limitations, refund           
          any balance to the person.  In lieu of a refund, a taxpayer can             
          instruct the IRS to credit his overpayment against the estimated            
          tax for the taxable year immediately succeeding the year of the             
          overpayment.  Sec. 301.6402-3(a)(5), Proced. & Admin. Regs.   It            
          is well settled that the IRS need only refund, or apply to the              
          taxpayer’s estimated tax, that portion of the overpayment that              
          exceeds the taxpayer’s “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) (quoting             
          United States v. 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 delinquencies or to             
          refund them to the taxpayer”); Kalb v. United States, 505 F.2d              
          506, 509 (2d Cir. 1974) (rejecting the argument that because the            
          tax overpayment was voluntary, the IRS was bound to comply with             
          the taxpayer’s direction about how to apply that payment; section           
          6402(a) “clearly gives the IRS discretion to apply a refund to              
          ‘any liability’ of the taxpayer”).                                          
               Respondent’s application of petitioner’s 2000 overpayment to           
          petitioner’s 1994 tax liability falls within respondent’s                   







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