Susan Bocock and Jack Carl Ryals - Page 8

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                              (B) the amounts previously                              
                         assessed (or collected without                               
                         assessment) as a deficiency, over–-                          
                         (2) the amount of rebates, as defined in                     
                    subsection (b)(2), made.                                          
               Petitioners contend that the payments in issue fall within             
          the parenthetical language of section 6211(a)(1)(B), “(or                   
          collected without assessment)”.  We disagree.  Petitioners’                 
          argument ignores the language immediately following the                     
          parenthetical phrase; i.e., “as a deficiency”.  Petitioners                 
          contend that they intended the payments in issue to be estimated            
          tax payments for taxable year 2002.  At the time petitioners made           
          the payments in issue, they had not even filed their 2002 tax               
          return.  Section 6211(b) provides that, for purposes of that                
          section, the tax imposed by subtitle A and the tax shown on the             
          return “shall both be determined without regard to payment on               
          account of estimated tax”.  See Mackey v. Commissioner, T.C.                
          Memo. 2004-70; Malachinski v. Commissioner, T.C. Memo. 1999-182,            
          affd. 268 F.3d 497 (7th Cir. 2001); see also sec. 301.6211-1(b),            
          Proced. & Admin. Regs. (“Payments on account of estimated income            
          tax * * * shall likewise be disregarded in the determination of a           
          deficiency.”).                                                              
               We therefore conclude that the payments in issue were                  
          estimated tax payments and not amounts assessed (or collected               
          without assessment) as a deficiency pursuant to section                     







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