Robert C. Austin - Page 13

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          Sixth Circuit, which has now spoken definitively on the issue in            
          this case.                                                                  
               After the parties submitted their briefs in the present                
          case, the Court of Appeals for the Sixth Circuit affirmed our               
          decision in Gabelman v. Commissioner, T.C. Memo. 1993-592, in               
          which the taxpayer voluntarily and in good faith prepared his               
          extension request and the accompanying check, and based on the              
          facts and circumstances, this Court held that the taxpayer's                
          remittance was a payment of tax.  Gabelman v. Commissioner, 86              
          F.3d 609 (6th Cir. 1996).  The Court of Appeals affirmed,                   
          however, on the ground that remittances submitted with Forms 4868           
          are payments of tax as a matter of law.  Id. at 611-612.                    
               The Court of Appeals for the Sixth Circuit reasoned that               
          "The express language of the regulations[3] requires taxpayers to           
          submit an estimated payment of their taxes with Form 4868                   
          extension requests" (emphasis in original) and also that such               
          remittances are analogous to the withholding of taxes and payment           
          of estimated taxes throughout the year, which are deemed paid on            
          April 15 of the following year and the due date of the return,              
          respectively, under section 6513(b).  Id. at 612.  The Sixth                
          Circuit rejected the contrary conclusion we had reached in our              
          opinion in Risman v. Commissioner, supra.  Also, the Court of               
          Appeals for the Sixth Circuit distinguished the situation in                

          3 The regulations referred to are sec. 1.6081-4(a)(4) and                   
          1.6081-4(b), Income Tax Regs.                                               

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