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is obsolete in view of the fact that the additional statutory
language we examined therein had been repealed by the time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