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"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 an
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