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6015(a). But no less fundamentally, in my view, for the reasons
discussed below, even if such an action were considered a
“determination”, it would not be a determination “under” section
6015, within the meaning of section 6015(a).
Before a taxpayer may be allowed a refund or credit, there
must be a determination that the taxpayer has made an
overpayment. See secs. 6401 and 6402. The term “overpayment” is
not statutorily defined but is construed to mean “any payment in
excess of that which is properly due.” Jones v. Liberty Glass
Co., 332 U.S. 524, 531 (1947). Under this definition, an
overpayment has two elements: “(1) the correct tax for the year
and (2) the amounts paid as tax.” Saltzman, IRS Practice and
Procedure, par. 11.02, at 11-10 (rev. 2d ed. 2002). Section 6015
addresses only the first element; i.e., the extent to which the
individual should be relieved of joint and several liability for
the year.3 Before the individual may be entitled to a refund,
however, there must also be a determination of the second
element; i.e., the amount of tax the individual has paid. This
determination implicates a host of factual and legal issues
(including the issue of how to source payments from community
property assets), none of which arise under or can be resolved
3 A determination of relief under sec. 6015 would not
necessarily be dispositive of the individual’s correct tax for
the year, inasmuch as the individual might have income taxes or
other Federal taxes due unrelated to the amounts subject to
relief under sec. 6015.
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