Leon S. Malachinski - Page 18




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          1980.  It has not been previously assessed, or collected without            
          assessment, “as a deficiency” for 1980, because at the time it              
          was remitted, respondent had not made a determination of                    
          petitioner’s tax liability.  See Conforte v. Commissioner, 74               
          T.C. 1160, 1204-1205 (l980), affd. in part, revd. in part and               
          remanded 692 F.2d 587 (9th Cir. 1982).  In fact, no deficiency              
          for 1980 was even proposed until 1994, 10 years after the                   
          remittance was made.  See Greene v. Commissioner, T.C. Memo.                
          1965-312.  Nor can it be a “rebate”, which likewise requires that           
          respondent have made a “substantive recalculation” of the tax               
          owed.  O’Bryant v. United States, 49 F.3d 340, 342 (7th Cir.                
          1995); see also Lesinski v. Commissioner, T.C. Memo. 1997-234.              
          Instead, under settled principles, the $20,400 was merely a                 
          deposit, made well before any deficiency was proposed or                    
          determined.                                                                 
               A taxpayer’s remittance will generally 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 Risman v. Commissioner, 100 T.C. 191, 197 (1993)            
          (citing Rosenman v. United States, 323 U.S. 658, 661-662 (1945));           
          Ewing v. United States, 914 F.2d 499, 503-504 (4th Cir. 1990);              
          Fortugno v. Commissioner, 353 F.2d 429, 435 (3d Cir. 1965), affg.           
          41 T.C. 316 (1963).  “Until such time and absent such intent, a             
          remittance by a taxpayer to respondent generally will be                    





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