Keith Lee Wilson - Page 12

          the remittance in question is a payment of tax or a deposit.  In            
          the instant case, there is no evidence in the record to indicate            
          petitioner intended either the $5,000 in estimated tax payments or          
          the $8,000 remittance included with his request for an extension of         
          time to file his 1988 tax return to be anything other than that             
          which it purports to be; namely, a payment against petitioner's             
          1988 tax liability.  Cf. Risman v. Commissioner, 100 T.C. 191               
          (1993).  Moreover, we are mindful that an appeal in this case lies          
          with the U.S. Court of Appeals for the Ninth Circuit, which in Ott          
          v. United States, 141 F.3d 1306 (9th Cir. 1998), stated that as a           
          matter of statutory construction, a remittance with a request for           
          an extension of time to file a tax return constituted a tax                 
          payment, not merely a deposit.  Consequently, the Court of Appeals          
          held that the limitations period for seeking a refund of taxes paid         
          in Ott began to run at the time of remittance.  Id. at 1309.  A             
          similar holding is required in this case.  See Golsen v.                    
          Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir.             
               To summarize, petitioner's claimed overpayment for 1988 is             
          time barred.  See Commissioner v. Lundy, supra.                             
               With regard to 1992, petitioner had $39,368.97 in withheld             
          income taxes, which is deemed to have been paid on April 15, 1993.          
          See sec. 6513(b)(1).  The parties have stipulated that petitioner's         

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