- 10 -
United States, 141 F.3d 1306, 1308 (9th Cir. 1998); Risman v.
Commissioner, 100 T.C. 191, 197-198 (1993) (all discussing
Rosenman progeny). Under that approach, courts generally seek to
determine whether, based on all of the relevant facts and
circumstances associated with the remittance, the remitter
intended the remittance to satisfy what he or she regarded as an
existing tax liability. See, e.g., Risman v. Commissioner, supra
at 197 (and cases cited therein). Such intent is generally
considered to be lacking in the case of a random remittance
(e.g., one made without reference to a return and prior to any
IRS audit4) of an amount that bears no good faith relationship to
the remitter’s reasonably possible ultimate tax liability. See
id. at 198.
In contrast to the foregoing, the Court of Appeals for the
Fifth Circuit (to which an appeal in these cases likely would go)
interpreted Rosenman v. United States, supra, as establishing a
generally applicable rule that a remittance in respect of a tax
cannot become a “payment” of that tax for purposes of section
6511 until the Commissioner assesses the tax in question. See
Thomas v. Mercantile Natl. Bank, 204 F.2d 943, 944 (5th Cir.
1953); see also Ford v. United States, 618 F.2d 357, 359 (5th
Cir. 1980) (following Thomas); Harden v. United States, 76 AFTR
4 The Commissioner has published guidelines for taxpayers
seeking to make deposits in the audit context in Rev. Proc. 84-
58, 1984-2 C.B. 501.
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