- 6 -
Co., 320 U.S. 418 (1943); Rothensies v. Electric Storage Battery
Co., 329 U.S. 296 (1946).
The standard for determining whether a remittance is a
payment or deposit was set forth in Risman v. Commissioner, 100
T.C. 191, 197 (1993), as follows:
A remittance by a taxpayer to respondent generally
will not be regarded as a payment of Federal income tax
until the taxpayer intends that the remittance satisfy
what the taxpayer regards as an existing tax liability.
See Rosenman v. United States, 323 U.S. 658, 661-662
(1945); Ewing v. United States, * * * [914 F.2d 499] at
503-504 [(4th Cir. 1990)]; Fortugno v. Commissioner,
353 F.2d 429, 435 (3d Cir. 1965), affg. 41 T.C. 316,
322 (1963); see also Perkins v. Commissioner, 92 T.C.
749, 754-759 (1989). Until such time and absent such
intent, a remittance by a taxpayer to respondent
generally will be regarded, not as a payment of tax,
but merely as a deposit in the nature of a cash bond
with respect to a tax liability that is to be
determined at a later point in time.
* * * * * * *
A taxpayer's intent to have a remittance treated
as a payment or as a mere deposit is generally to be
established by all of the relevant facts and
circumstances associated with the remittance. Ewing v.
United States, supra at 503; Ameel v. United States,
426 F.2d 1270, 1273 (6th Cir. 1970); Dowell v.
Commissioner, T.C. Memo. 1980-515, affd. without
published opinion (10th Cir., Jan. 19, 1983), vacated
on other grounds 465 U.S. 1001 (1984).
5(...continued)
remittance was a payment for 1980 and considered paid as of
Apr. 15, 1981, the time limitations of sec. 6511(b)(2) would
apply to prohibit the credit of the payment, claim for which was
made in 1993, when petitioner filed his income tax returns for
1980, 1981, and 1982. If the $31,000 remittance was a deposit,
sec. 6511(b)(2)(A) would be applied from the time the deposit was
applied as a payment. In the setting of this case, petitioner
contends that the remittance was a deposit, which he directed as
a payment by filing his 1980, 1981, and 1982 returns in 1993
seeking to apply the deposit as a payment of any deficiency that
may be due.
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