Estate of Stella Adler Wilson - Page 9

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               Respondent finds himself on the horns of a dilemma in this             
          case.  On the one hand, he is constrained by Rosenman v. United             
          States, 323 U.S. 658 (1945), where the Supreme Court held that a            
          claim for refund for a remittance made as a "deposit" rather than           
          as a "payment" was not time barred by the predecessor to section            
          6511.  See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.              
          1999).  Thus, if decedent's 1986 remittance was a deposit,                  
          petitioner would, in general, be entitled to recover it without             
          interest, at any time before the IRS is entitled to assess the              
          tax.  See Rev. Proc. 84-58, sec. 4.01, 1984-2 C.B. 501, 502.                
               On brief, respondent expends substantial effort to establish           
          that decedent's 1986 remittance was not a deposit.  (For                    
          simplicity, when referring to decedent's "remittance" we refer to           
          the $89,410 segment of her $185,327 remittance, except where                
          noted.)  But respondent need not have made this effort, because             
          petitioner readily agrees that decedent's remittance was not a              
               The alternative with which respondent must therefore deal is           
          how to categorize the remittance, and respondent appears to agree           
          that the remittance constitutes a payment of tax.  As a matter of           
          fact, in his reply brief respondent cites Ertman v. United                  
          States, supra, for the proposition that where a payment is                  
          explicitly defined by the Code as a payment of tax, that payment            
          is a payment of tax rather than a deposit.  (As respondent notes            

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