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2. Judicially Created Distinction Between Payments and
Deposits
a. In General
i. Rosenman v. United States
In Rosenman v. United States, 323 U.S. 658 (1945), the
Supreme Court recognized that not all taxpayer remittances to the
Internal Revenue Service (IRS) constitute “payments” of tax. In
the context of the “lookback” rule of the predecessor of section
6511(b)(2), the Court held that the remittance before it, made in
connection with the procurement of a 2-month extension for filing
an estate tax return, was in the nature of a deposit that
attained “payment” status only as the Commissioner applied it in
satisfaction of subsequently assessed amounts. Id. at 662.
Notably, the transmittal letter accompanying the remittance
stated in part as follows: “This payment is made under protest
and duress, and solely for the purpose of avoiding penalties and
interest, since it is contended by the executors that not all of
this sum is legally or lawfully due.” Id. at 660-661.
ii. Judicial Interpretations of Rosenman
Most lower courts, including this Court, have interpreted
Rosenman v. United States, supra, as sanctioning a facts and
circumstances approach to determining whether a remittance in
respect of a tax is a payment of tax or a deposit, at least in
situations where the Code is silent on the issue. E.g., Ertman
v. United States, 165 F.3d 204, 206-207 (2d Cir. 1999); Ott v.
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