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Alternatively, respondent contends that, even under a facts
and circumstances analysis, the 1994 remittance was a payment
rather than a deposit. In that regard, respondent rejects
petitioners’ argument (discussed below) that the contemporaneous
view of the Court of Appeals for the Fifth Circuit regarding pre-
assessment remittances is relevant to these cases.
B. Petitioners’ Argument
Petitioners argue that the proper characterization of a
remittance to the IRS as a payment of tax or a deposit depends on
the facts and circumstances associated with the remittance.
Moreover, petitioners argue that the facts and circumstances
surrounding the 1994 remittance establish their contemporaneous
intent to treat the remittance as a mere deposit rather than a
payment of tax. On brief, petitioners focus primarily on the
fact that, when they made the 1994 remittance, they resided
within the geographic jurisdiction of a Court of Appeals which,
at that time, subscribed to the view that pre-assessment
11(...continued)
par. 50,125 (1st Cir. 1997), and Weigand v. United States, supra,
among the Court of Appeals cases holding that Form 4868
remittances are payments as a matter of law. In David, 80 AFTR
2d at 8428, 8429, the Court of Appeals for the First Circuit
specifically declined to decide that issue, concluding instead
that, in the absence of any evidence to the contrary, the
taxpayer presumably intended his Form 4868 remittance to
discharge the liability in question, thereby rendering the
remittance a payment. Regarding the Weigand case, see supra note
7.
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