- 21 - "payment". In Fortugno v. Commissioner, 41 T.C. 316 (1963), affd. 353 F.2d 429 (3d Cir. 1965), this Court held that no overpayment exists with respect to a particular fund until all or a part of that fund has been assessed, or until the taxpayer acquiesces in the proposed deficiency or a part thereof, and the deposited fund is allocated by respondent to payment of the agreed deficiencies. In the Fortugno case the taxpayers had deposited $1 million with the IRS in order to forestall a jeopardy assessment against them. At the time the deposit was made, the IRS had made no determination of any deficiencies against the taxpayers; the taxpayers never requested an assessment and never intended by their $1 million payment to waive their right to contest the correctness of any determination of deficiencies by the IRS. This Court held that, in order for the taxpayers' remittances to constitute a payment of tax, the remittances had to be made with the intention of satisfying an "asserted tax liability". Fortugno v. Commissioner, supra at 322. We concluded that the taxpayers did not make remittances to the IRS to satisfy an "asserted tax" liability, and, therefore, the remittances constituted a deposit rather than the payment of a tax. Here, other than the $2,899.89 directed by petitioner to be applied against her 1987 tax, petitioner made no payments to respondent. The amounts in question were levied pursuant to anPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: May 25, 2011