dissenting.
The majority holds that the district court properly determined that the facts of this case establish that Essiy Fink was not the “person who made the overpayment” within the meaning of 26 U.S.C. § 6402(a), and that, therefore, his estate is not entitled to *156the refund at issue. The majority does not follow this court’s decision in DeNiro v. United States, 561 F.2d 653 (6th Cir.1977). Accordingly, I dissent.
This court has already rejected the government’s argument that to be a proper party in a refund suit, the person seeking a refund must show that the United States has assessed and collected the taxes from him. Id. at 657. In DeNiro, we held that one other than the actual payer of a tax may have standing to sue for a refund. Id. DeNiro involved a situation in which two corporations were assessed a tax owed by their controlling shareholder. In DeNiro, by its actions, the Internal Revenue Service (IRS) had treated the corporate plaintiffs below as “taxpayers,” i.e., ones subject to a tax, see 26 U.S.C. § 7701(a)(14), and, therefore, the corporations had standing to sue for a refund. Id. at 656. The corporate plaintiffs, however, had not appealed from the district court’s dismissal of their actions. Therefore, this court went on to hold as follows:
Since the estate of Vincent DeNiro was the controlling shareholder in both corporations, payment of its tax liability by the corporations gave the estate the right to sue for a refund. Since no personal representative had been appointed, the appellees, as “executors” under § 2203, should be permitted to seek the refund on behalf of the estate.
Id. at 657. We specifically noted in DeNiro that the candidates for the refund other than the appellees were precluded from recovering in that case because they had failed to appeal from the district court’s dismissal of their actions. Id.
Similar to DeNiro, in the instant case Essiy Fink was assessed the tax. Additionally, Essiy Fink was later assessed the deficiency. His estate was compelled to pay this alleged deficiency or to challenge the assessments. If the alleged deficiency had existed, the IRS would not have hesitated before collecting from the estate. The IRS has treated Essiy Fink as a taxpayer and, therefore, he had and his estate now has standing to sue for a refund regardless of whether the overpayment was collected from him.
Also similar to DeNiro, it appears that the other candidates for the refund will be precluded from recovering from the IRS. Because the majority does not follow the dictates of DeNiro by considering this outcome, the IRS will be permitted to retain a windfall.
Because it is undisputed that the IRS has treated Essiy Fink as a taxpayer, and because it appears that other candidates for the refund will be precluded from recovering from the IRS, I would reverse the district court’s judgment.