- 18 - 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 bePage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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