                         T.C. Memo. 1997-340



                       UNITED STATES TAX COURT



         DOVER CORPORATION AND SUBSIDIARIES, ET AL.,1 Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent




    Docket Nos.     5842-91, 19640-91,           Filed July 28, 1997.
                   19668-91, 19886-91,
                    6102-93.


    Robert D. Whoriskey and Charles R. Goulding, for

petitioners.

     Lewis R. Mandel, for respondent.



                          MEMORANDUM OPINION


     DAWSON, Judge:    These cases were assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

     1
         Cases of the following petitioners are consolidated
herewith: Pathway Bellows, Inc., & Subsidiary, docket No.
19640-91; Measurement Systems, Inc., docket No. 19668-91; Dover
Corporation & Subsidiaries, docket No. 19886-91; Dover
Corporation & Subsidiaries, docket No. 6102-93.
                                - 2 -

7443A(b)(4) of the Internal Revenue Code of 1986, as amended, and

Rules 180, 181, and 183.2   The Court agrees with and adopts the

Opinion of the Special Trial Judge, which is set forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:    These consolidated cases are

before the Court on the motions of Dover Corporation and its

subsidiaries (hereinafter petitioner) to enforce refund of an

overpayment, filed pursuant to section 6512(b)(2) and Rule 260 at

each of the five above-numbered dockets. As explained in greater

detail below, we will deny petitioner's motions.

     By way of introduction, we observe that the taxable years

that are before the Court in the present five cases are 1982

through 1989.    Nevertheless, as will become apparent, the

disposition of petitioner's motions requires that we focus on

1993 and certain other taxable years that are not in issue in the

present cases.

Background

     Respondent issued separate notices of deficiency to

petitioner in which respondent determined deficiencies in

petitioner's Federal corporate income taxes for the years as

follows:



     2
         Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for the taxable years in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                 - 3 -


     Taxpayer                       Taxable Years Ended

     Dover Corporation             12/31/82, 12/31/83
     and Subsidiaries

     Dover Corporation             12/31/84, 12/31/85,
     and Subsidiaries              and 12/31/86

     Dover Corporation             12/31/87, 12/31/88,
     and Subsidiaries              and 12/31/89

     Pathway Bellows, Inc.         9/1/83 (1 day)
     and Subsidiary

     Measurement Systems, Inc.     3/1/82 to 11/12/82


     Petitioner commenced the present five cases by filing

petitions for redetermination contesting respondent's deficiency

determinations.   These cases were consolidated for purposes of

trial, briefing, and opinion based on the similarity of the

issues presented for decision and on the fact that Pathway

Bellows, Inc. and Subsidiary, and Measurement Systems, Inc., had

became part of Dover Corporation's consolidated group of

corporations during the later years in issue.

     On September 14, 1995, the Court entered decisions in the

present five cases pursuant to agreement of the parties.   These

decisions, when considered in the aggregate, reflect a net

overpayment of tax in the amount of approximately $3 million.

Sec. 6512(a).   The parties agree that petitioner is also entitled

to interest on the net overpayment in the amount of approximately

$1 million.
                                 - 4 -

     As explained in greater detail in our Memorandum Opinion

filed this day in a companion case, Dover Corporation and

Subsidiaries v. Commissioner, T.C. Memo. 1997-339, respondent did

not refund the above-described $3 million overpayment to

petitioner, but rather applied such amount against what

respondent concluded was petitioner's unpaid tax liability for

1993.   In response to respondent's action, petitioner filed its

Motions to Enforce Refund of Overpayment; petitioner also filed a

Motion to Restrain Assessment or Collection in the companion

case, Dover Corporation and Subsidiaries v. Commissioner, docket

No. 24250-96.   The latter docket involves petitioner's tax

liabilities for 1992 and 1993.

     Respondent contends that the assessment and related

collection action regarding petitioner's tax liability for 1993

are proper and, therefore, that petitioner's Motions to Enforce

Refund of an Overpayment should be denied.

Discussion

     Section 6512(b)(2) provides:

          (2) Jurisdiction To Enforce.--If, after 120 days
     after a decision of the Tax Court has become final, the
     Secretary has failed to refund the overpayment
     determined by the Tax Court, together with the interest
     thereon as provided in subchapter B of chapter 67, then
     the Tax Court, upon motion by the taxpayer, shall have
     jurisdiction to order the refund of such overpayment
     and interest.

     Because petitioner filed its Motions to Enforce Refund of an

Overpayment more than 120 days after the date on which the
                              - 5 -

decisions in the present five cases became final, the Court has

jurisdiction to entertain petitioner's motions to enforce the

refund of the net overpayment that was determined in such

decisions.

     Section 6402(a) provides in pertinent part:

          (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
     * * * refund any balance to such person.

     Given the discretion afforded respondent in the application

of an overpayment pursuant to section 6402(a), the Court

generally will only order the refund of an overpayment if

respondent has erroneously withheld or applied such refund.

     Consistent with our holding in Dover Corporation and

Subsidiaries v. Commissioner, T.C. Memo. 1997-339, wherein we

denied petitioner's Motion to Restrain Assessment or Collection,

and for the reasons that follow, we will deny petitioner's

Motions to Enforce Refund of an Overpayment in the present five

cases.

     In Dover Corporation and Subsidiaries v. Commissioner, T.C.

Memo. 1997-339, we considered respondent's decision not to accept

petitioner's amended returns for 1990 and 1991.    Such decision

led respondent to disallow a large overpayment that petitioner

had elected to be treated as a credit to be applied against its

estimated tax liability for 1993.   Because respondent did not
                               - 6 -

recognize the credit against petitioner's estimated tax liability

for 1993, respondent concluded that petitioner had failed to pay

a portion of the tax reported on its income tax return for 1993.

It is this unpaid tax liability against which respondent applied

the net overpayment otherwise due to petitioner for the taxable

years 1982 through 1989.

     In analyzing the matter in Dover Corporation and

Subsidiaries v. Commissioner, supra, we observed that respondent

had examined petitioner's income tax returns for 1990 and 1991,

and had issued a notice of deficiency to petitioner for those

years, nearly 1 month before petitioner filed its amended returns

for those years.   Under the circumstances, we concluded that

respondent had the authority to reject petitioner's amended

returns for 1990 and 1991.   We also concluded that respondent had

the authority to assess and collect the unpaid tax that was

reported on petitioner's income tax return for 1993.    Because

respondent was not attempting to collect the disputed deficiency

for 1993, we denied petitioner's Motion to Restrain Assessment or

Collection.

     Petitioner's Motions to Enforce Refund of an Overpayment

filed in the present five cases are based on the same theory as

that which underlies petitioner's Motion to Restrain Assessment

or Collection; i.e., that respondent erred in "disallowing" the

credit against estimated taxes reported on petitioner's income

tax return for 1993.   Consistent with our conclusion in Dover
                                 - 7 -

Corporation and Subsidiaries v. Commissioner, T.C. Memo. 1997-

339, that respondent's collection efforts regarding petitioner's

assessed and unpaid tax liability for 1993 are not improper, it

follows that petitioner's Motions to Enforce Refund of an

Overpayment should likewise be denied.

     To reflect the foregoing,



                                         Orders denying petitioner's

                                 Motions to Enforce Refund of an

                                 Overpayment will be entered.
