the forum. Either of those approaches would force some taxpayers to resolve a single tax controversy in two different forums. Strangely, those forced to unreasonably duplicate their costs and efforts would be the lucky ones because, as in this case, others would be barred from recovery of the interest portion of the overpayment due to their failure and/or inability to make a timely claim. [Id. at 456–457.] In passing, we note that Estate of Baumgardner was a reviewed Opinion of the Court that has been consistently followed for more than 18 years since it was issued. See WinnDixie Stores, Inc. v. Commissioner, 110 T.C. 291 (1998) (underpayment interest under section 6601 is part of an overpayment); Bachner v. Commissioner, 109 T.C. 125, 128 (1997) (the term "overpayment" is not defined in terms of the items treated as overpayments by section 6401(a)), affd. without published opinion 172 F.3d 859 (3d Cir. 1998); Barton v. Commissioner, 97 T.C. 548, 555 (1991) (increased interest (at 120 percent of the normal rate) governed by section 6621(c) is part of an overpayment); Estate of Bell v. Commissioner, 92 T.C. 714, 728 (1989) (an estate which elected to defer estate tax under section 6166 is entitled to a determination of the overpayment of interest, as well as a determination of the overpayment of tax), affd. 928 F.2d 901 (9th Cir. 1991); Judge v. Commissioner, 88 T.C. 1175, 1187 (1987) (the additions to tax under section 6651(a)(1) and (2) are part of an overpayment); Gabelman v. Commissioner, T.C. Memo. 1993-592 (section 6512(b) confers jurisdiction on this Court to review the amount of an overpayment of tax, including amounts withheld from the taxpayer's wages), affd. 86 F.3d 609 (6th Cir. 1996); Johnson v. Commissioner, T.C. Memo. 1993-562 (a deposit is not a payment, and thus this Court lacks jurisdiction under section 6512(b) to order a refund of any part of such an amount); see also Bankamerica Corp. v. Commissioner, 109 T.C. 1 (1997); Centel Communications Co. v. Commissioner, 92 T.C. 612, 628 (1989), affd. 920 F.2d 1335 (7th Cir. 1990); 508 Clinton Street Corp. v. Commissioner, 89 T.C. 352, 354 (1987); Pace v. Commissioner, T.C. Memo. 2000-300; Estate of Wilson v. Commissioner, T.C. Memo. 1999-221. We believe that respondent's view of what constitutes an overpayment for purposes of section 6512(b) is too narrow and does not square with our opinion in Estate of Baumgardner v. Commissioner, supra. Contrary to respondent's position, we believe that, under certain circumstances, additional overpayment interest that is allowable under section 6611(a) with respect to an interim overpayment is similar to the underpayment interest involved in Estate of Baumgardner and can constitute an overpayment for purposes of section 6512(b). Most of the overpayments underlying petitioner's claims for additional overpayment interest are interim overpayments that respondent credited against a tax liability of petitioner for a different year and/or a different tax, pursuant to section 6402(a). Subsection (a) provides as follows: SEC. 6402. AUTHORITY TO MAKE CREDITS OR REFUNDS. (a) GENERAL RULE.-In the case of any overpayment, the Secretary, within the applicable period of limitations, may credit the amount of such overpayment, including any interest allowed thereon, against any liability in respect of an internal revenue tax on the part of the person who made the overpayment and shall, subject to subsections (c), (d), and (e), refund any balance to such person. [Emphasis added.] The Commissioner cannot be compelled to credit an overpayment against a liability of the taxpayer. See, e.g., N. States Power Co. v. United States, 73 F.3d 764, 768 (8th Cir. 1996). If the Commissioner chooses to do so, however, then section 6402(a) provides that the Commissioner may credit the amount of the overpayment "including any interest allowed thereon" against a liability of the taxpayer, and with certain exceptions, shall "refund any balance" to the taxpayer. If the Commissioner fails to include all or a part of the interest that is allowable on the overpayment, then the aggregate amount of the overpayment, plus the allowable interest, will exceed the amount of the tax liability satisfied by the credit. In effect, the taxpayer will have overpaid the liability by the amount of allowable interest that is not credited. For example, assume that, pursuant to section 6402(a), the Commissioner credits an overpayment of $1,000 against a liability of the same taxpayer for a different taxable year in the amount of $1,000 but fails to include interest of $20 computed under section 6611 that is allowable on the overpayment. Under these facts, the taxpayer would have used $1,020 to satisfy a liability of $1,000. In effect, the taxpayer would have overpaid the liability against which the overpayment is credited by $20. That amount would be "legally due", to use respondent's words, pursuant to section 6402(a). Under that provision, the overpayment, including any interest allowed thereon, may be credited, but it directs the Commissioner to "refund any balance" to the taxpayer. Sec. 6402(a). To the extent that overpayment interest under section 6611 is not credited, we believe that it can be considered to have been overpaid by the taxpayer for purposes of section 6512(b). Otherwise, our overpayment jurisdiction would not mirror the jurisdiction of the U.S. District Courts and the Court of Federal Claims. See, e.g., Triangle Corp. v. United States, 592 F. Supp. 1316 (D. Conn. 1984). In exercising overpayment jurisdiction under section 6512(b) with regard to overpayment interest in the case of overpayments credited or refunded by the Commissioner, we are not acting in derogation of section 6512(b)(4), as suggested by respondent. Section 6512(b)(4) provides that the Tax Court shall have no jurisdiction "to restrain or review any credit or reduction made by the Secretary under section 6402." In Savage v. Commissioner, 112 T.C. 46 (1999), for example, the taxpayer's 1993 return claimed an overpayment of approximately $10,000, which the Commissioner credited to the taxpayer's assessed tax liabilities for 1990 and 1991. Thereafter, the Commissioner issued a notice of deficiency with respect to 1993, and the taxpayer filed a timely petition. The taxpayer argued that the Commissioner had improperly determined the taxpayer's tax liabilities for 1990 and 1991. We held that we lacked jurisdiction to consider the matter, pursuant to section 6512(b)(4). Unlike Savage, in exercising our overpayment jurisdiction with respect to overpayment interest on overpayments that have been credited or refunded by the Commissioner, we are not called upon "to restrain or review" the tax liability against which the overpayment is credited, within the meaning of section 6512(b)(4). To the contrary, the only issue in this case is whether the amount of credit should have been higher by reason of respondent's failure to allow all or a portion of the interest on the overpayment. |