Barbara Deaton - Page 15

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          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          is obsolete in view of the fact that the additional statutory               
          language we examined therein had been repealed by the time                  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...)          





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