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United States, 357 U.S. 63 (1958); see Estate of Baumgardner v.
Commissioner, 85 T.C. 445, 453, 461 (1985).
Explicit Statutory Authority
1. Majority View
The majority narrowly construes the statute and concludes
that “explicit [specific] statutory authority” is necessary for
the Court to acquire jurisdiction. Majority op. pp. 17, 18. We
note, however, that when Congress wants to deny the Tax Court
jurisdiction over overpayments and refunds it knows how to do so.
Secs. 6214(b), 6512(b)(4); Revenue Act of 1926, ch. 27, sec.
274(g), 44 Stat. 56.
Section 6512(b)(4) states: “The Tax Court shall have no
jurisdiction under this subsection to restrain or review any
credit or reduction made by the Secretary under section 6402.”
Section 6330 contains no explicit statutory language limiting our
overpayment or refund jurisdiction. Accordingly, in the absence
of such explicit language, Congress did not deny us jurisdiction
to decide that there has been an overpayment.
The majority seems to acknowledge that from our inception
the Board did have jurisdiction to determine an overpayment in
certain circumstances. Majority op. p. 14 & note 15 (“When our
5(...continued)
as the deficiency case); Lowy, Thoughts on Practicalities Of the
CDP Process, 107 Tax Notes 783 (May 9, 2005) (in cases involving
the underlying tax liability, “the doctrine of res judicata may
bar a refund action subsequent to the CDP process”).
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