Further, Congress received testimony from both the Administration and the private sector during congressional hearings on the RRA 1998 amendment to section 7430. See testimony of Donald Lubick, Assistant Secretary of Treasury (Tax Policy), Hearings on H.R. 2292, 105th Cong., 1st. Sess. (Sept. 26, 1997). The American Bar Association (Taxation Section) specifically requested that Congress amend section 7430(c)(7) to add the 30-day letter to the situations in which the Government is defined as having taken a position. See testimony of Pamela F. Olson, Vice Chair, Committee Operations, Section of Taxation, American Bar Association, Hearings on H.R. 2292, 105th Cong., 1st Sess. (Sept. 26, 1997), reprinted in 97 TNT 188-76 ("We recommend that Congress also amend the definition of 'position of the United States' *** [to refer] to the date of the issuance of the first notice of proposed deficiency"). Despite having the specific fact called to Congress's attention, Congress passed the RRA 1998 legislation without making any conforming amendment to section 7430(c)(7).

Moreover, we are mindful that the RRA 1998 amendment to section 7430 is not the first time Congress rejected adding the 30-day letter to section 7430(c)(7). The first time Congress rejected adding the 30-day letter to section 7430(c)(7) was in TAMRA in 1988. The Senate amendment in TAMRA to section 7430(c)(7) would have included the 30-day letter as a "position" of the Government under section 7430(c)(7). As with the proposed RRA 1998 amendment to section 7430(c)(7), Congress rejected the proposed amendment to section 7430(c)(7) in TAMRA. See H. Conf. Rept. 100-1104 (Vol. II), at 225-226 (1988), 1988-3 C.B. 473, 715-716. In addition, despite the numerous amendments to section 7430 since the section was first enacted in 1982, the "position of the United States" has never been defined in section 7430(c)(7) to include the 30-day letter. We find this fact compelling.

If Congress had wanted the "position of the United States" to include the 30-day letter, it could have explicitly said so. This Court is "not at liberty to supply by construction what Congress has clearly shown its intention to omit." Carey v. Donohue, 240 U.S. 430, 437 (1916); see also INS v. CardozaFonseca, 480 U.S. 421, 442-443 (1987) (“Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact

statutory language that it has earlier discarded in favor of other language."). The fact that Congress considered an amendment to section 7430(c)(7) to allow recovery of administrative costs in situations before the issuance of a notice of deficiency or Appeals Office decision but chose not to do so convinces us that it would be inappropriate to interpret the RRA 1998 amendment of section 7430(c)(2) by grafting a concomitant amendment onto section 7430(c)(7).

Finally, we note that neither section 7430(c)(2) nor section 7430(c)(7) is rendered meaningless, or is otherwise contradicted, by the other. All parts of a statute must be read together, and each part should be given its full effect. See McNutt-Boyce Co. v. Commissioner, 38 T.C. 462, 469 (1962), affd. per curiam 324 F.2d 957 (5th Cir. 1963). We find no reason why the language of each should not be given its full effect. Accordingly, we interpret section 7430(c)(7) to limit recovery of administrative costs to those situations in which a notice of deficiency or Appeals Office decision has been issued. In these situations and these situations alone, section 7430(c)(2) allows for the recovery of administrative costs incurred from the date of the 30-day letter.

B. The Reviewer's Proposal

Petitioners claim that respondent did take a "position" as manifested in the reviewer's proposal. Specifically, petitioners argue that the reviewer's proposal constitutes a “notice of deficiency" for purposes of section 7430(c)(7) and that, accordingly, the date on which it was submitted for review to the District Counsel, namely March 27, 1998, is the date on which respondent took a position. We disagree.

The reviewer's proposal is not a notice of deficiency for purposes of section 7430(c)(7). A statutory notice of deficiency has a specific, technical meaning. A "notice of deficiency" is defined in section 6212(a) as a notice from the Secretary sent to the taxpayer by certified or registered mail in which the Secretary has determined that there is a deficiency in respect of any tax imposed by subtitle A or B or chapter 41, 42, 43, or 44. See Shut Out Dee-Fence, Inc. v. Commissioner, 77 T.C. 1197, 1200-1201 (1981). The plain language of section 6212(a) requires that the notice, at a minimum, indicate that the Commissioner determined that a deficiency exists for a

particular year, specify the amount of the deficiency, and be sent to the taxpayer. See Benzvi v. Commissioner, 787 F.2d 1541 (11th Cir. 1986).

In this case, respondent never determined a deficiency for any particular year and never sent the reviewer's proposal to petitioners. Accordingly, the reviewer's proposal does not constitute a "notice of deficiency" within the meaning of section 7430(c)(7). See also Estate of Gillespie v. Commissioner, 103 T.C. 395, 397 (1994) (30-day letter not a notice of deficiency for purposes of section 7430).

Petitioners further contend that the term "notice of deficiency" in section 7430(c)(7) should not be given the same meaning it has under section 6212, and that for purposes of section 7430(c)(7)(B)(ii) it is inconsequential that the reviewer's proposal was neither issued nor sent to them. Again, we disagree.

We have previously found, and the regulations provide, that the meaning of the term "notice of deficiency" in section 7430(c) is the same as the meaning of that term in section 6212. See Estate of Gillespie v. Commissioner, supra; sec. 301.7430-3(c)(3), Proced. & Admin. Regs. Under well-established rules of statutory construction, identical words used in different parts of the same statute are to be given a similar meaning in the absence of a contrary legislative intent. See Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934). We find no reason for interpreting the term "notice of deficiency" in section 7430(c)(7) differently from the meaning of that term under section 6212. See Barnhill v. Johnson, 503 U.S. 393, 406 (1992); Sorenson v. Secy. of Treasury, 475 U.S. 851, 860 (1986).

C. Conclusion

In conclusion, given that petitioners were never issued a notice of deficiency or an Appeals Office notice, we find that respondent never took a position for purposes of section 7430(c)(4) and that petitioners are therefore not "prevailing parties" entitled to recover administrative costs under section 7430(a).

We have considered all of petitioners' contentions and arguments. To the extent any contention or argument is not discussed, we find it to be without merit and/or irrelevant.

To reflect the foregoing,

An appropriate order and decision will be entered.

SUNOCO, INC. AND SUBSIDIARIES, PETITIONER v.
COMMISSIONER OF INTERNAL REVENUE,

RESPONDENT

Docket No. 19631-97.

Filed February 4, 2004.

Respondent asks the Court to dismiss for lack of subject matter jurisdiction petitioner's overpayment claims under sec. 6512(b), I.R.C., for the years in issue to the extent that they involve interest computed under sec. 6611(a), I.R.C., so-called overpayment interest. Held, on the basis of Estate of Baumgardner v. Commissioner, 85 T.C. 445 (1985), the Court has jurisdiction.

Robert L. Moore II, Thomas D. Johnston, and Majorie A. Burnett, for petitioner.

John A. Guarnieri, Craig Connell, and Keith L. Gorman, for respondent.

OPINION

WHALEN, Judge: This case is before the Court to decide respondent's motion to dismiss for lack of subject matter jurisdiction filed with regard to certain claims petitioner made in an amendment to its petition. The issue raised by respondent's motion is whether this Court lacks jurisdiction under section 6512(b) to consider petitioner's claims for overpayment to the extent that they involve so-called overpayment interest, as described below. All section references are to the Internal Revenue Code for the years at issue. We believe that the issues in this case are controlled by our Opinion in Estate of Baumgardner v. Commissioner, 85 T.C. 445 (1985). On that basis, we hold that we have jurisdiction to determine an overpayment composed of overpayment interest. Therefore, we will deny respondent's motion.

Background

Petitioner filed the instant petition for redetermination of deficiencies respondent determined for 1979, 1981, and 1983.

Petitioner later filed an amendment to its petition that makes reference to the fact that petitioner and respondent had settled various issues with regard to the years in issue. The amendment to petition claims additional overpayments for each of those years due to errors allegedly made by respondent "in calculating the interest on underpayments and overpayments arising out of the settled issues". The amended petition alleges that in calculating interest respondent used "numerous incorrect starting and ending dates for the running of interest" and "numerous incorrect dates in applying payments and credits and making transfers to other accounts" and that "respondent failed to credit or refund the correct amount of interest on petitioner's overpayments." In addition, the amended petition alleges that "respondent did not use netting principles when calculating the interest balances" and "in addition to the overpayments referenced above, petitioner seeks overpayments attributable to the calculation of interest utilizing netting principles." In general, according to the amended petition, for each of the years in issue, the interest respondent charged on "underpayments” under section 6601 was too high, and the interest respondent allowed with respect to "overpayments" under section 6611 was too low.

The amended petition asserts that the overpayment for each of the years in issue is as follows:

Attached to respondent's motion to dismiss is the affidavit of an employee of the Internal Revenue Service, a former