- 9 - 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 notesPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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