- 21 -
so construed, that circumstance would not affect our conclusion
that we lack jurisdiction under section 6330 to determine any
overpayment or to order a refund or credit. Unlike section
6404(h), section 6330 contains no cross-reference to the rules of
section 6512(b), nor does section 6330 cross-reference section
6404(h)(2)(B), which makes section 6512(b)-type rules applicable
only “for purposes of this subsection” (i.e., subsection (h) of
section 6404). Section 6404(h)(2)(B) illustrates that Congress
has acted infrequently to extend this Court’s overpayment
jurisdiction, and then only in a deliberate and circumscribed
manner. These considerations buttress our conclusion that we
should not assume overpayment jurisdiction in a section 6330(d)
proceeding absent express statutory provision.
We are mindful that the District Court has stayed
petitioner’s refund case with the expectation that this Court
21(...continued)
virtue of sec. 6404(b), which provides: “No claim for abatement
shall be filed by a taxpayer in respect of an assessment of * * *
[income] tax imposed under subtitle A”. See Urbano v.
Commissioner, 122 T.C. at 395; see also Melin v. Commissioner, 54
F.3d 432 (7th Cir. 1995); Bax v. Commissioner, 13 F.3d 54, 58 (2d
Cir. 1993); Asciutto v. Commissioner, T.C. Memo. 1992-564, affd.
per order 26 F.3d 108 (9th Cir. 1994). Petitioner has not
alleged, and the record does not suggest, that she qualifies for
abatement of interest under the applicable version of sec.
6404(e), which would require unreasonable error or delay
resulting from a “ministerial act”. See Urbano v. Commissioner,
supra at 390 n.4 (describing the 1996 legislative amendment which
broadened the scope of sec. 6404(e) to include “managerial and
ministerial” acts, effective for interest accruing on
deficiencies for taxable years beginning after July 30, 1996).
Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: May 25, 2011