- 15 - a payment as a matter of law for purposes of the “lookback” rules of section 6511(b)(2). Ertman v. United States, 165 F.3d 204 (2d Cir. 1999); Dantzler v. United States, 183 F.3d 1247 (11th Cir. 1999); Ott v. United States, 141 F.3d 1306 (9th Cir. 1998); Gabelman v. Commissioner, 86 F.3d 609 (6th Cir. 1996), affg. T.C. Memo. 1993-592.10 II. Arguments of the Parties A. Respondent’s Argument Respondent’s principal argument is that, by operation of section 6513(b)(2), petitioners’ 1994 remittance was a payment (rather than a deposit) as a matter of law, with the result that, pursuant to section 6511(b)(2)(A), the overpayment for 1993 is not available as a credit against petitioners’ 1994-96 tax liabilities. In support of that argument, respondent contends that our analysis in Risman v. Commissioner, 100 T.C. 191 (1993), is obsolete in view of the fact that the additional statutory language we examined therein had been repealed by the time petitioners filed their 1993 Form 4868. Respondent also points to the “weight of authority” that is contrary to Risman.11 10 Although we reached the same result in Gabelman v. Commissioner, T.C. Memo. 1993-592, affd. 86 F.3d 609 (6th Cir. 1996), as did the Court of Appeals for the Sixth Circuit on appeal, we did so based on the facts and circumstances of the case, consistent with Risman v. Commissioner, supra. 11 In addition to the four cases cited above, respondent includes David v. United States, 80 AFTR 2d 97-8427, 98-1 USTC (continued...)Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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