Ralph Leon Hays, Jr., - Page 9

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          $31,000 remittance to be specifically or exclusively for the 1980           
          tax year under these circumstances.                                         
               Respondent argues that the remittance was treated by the               
          Internal Revenue Service as an estimated tax payment.7  By                  
          analogy, respondent cites Gabelman v. Commissioner, T.C. Memo.              
          1993-592, on appeal (6th Cir., Mar. 3, 1995), where we decided              
          that remittances submitted with Forms 4868 (Applications for                
          Automatic Extension of Time To File U.S. Individual Income Tax              
          Return) were payments of tax.  In that case we pointed out that             
          “Generally, a remittance by a taxpayer to respondent will not be            
          considered a payment ‘until the taxpayer intends that the                   
          remittance satisfy what the taxpayer regards as an existing tax             
          liability’” (emphasis supplied) (quoting Risman v. Commissioner,            
          supra at 197).  From all of the facts in that case, including the           
          language on the Form 4868 and the fact that the taxpayer had                
          estimated the tax liability due on the application for an                   
          extension of time to file, we held that the remittances were                
          payments.  The facts of this case are obviously distinguishable             
          from those of Gabelman v. Commissioner, supra.                              
               Under the subjective standard established by case law,                 
          respondent’s treatment of the remittance is not conclusive,                 
          although it is one of the factors to be considered.  The question           
          here is not parallel with situations where an essentially                   
          objective standard is employed in attempting to decide whether a            


               7 Respondent admitted on brief that she was unable to locate           
          any declaration of estimated income tax form accompanying the               
          $31,000 check.                                                              

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