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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
deposit.
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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