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remittances are deposits as a matter of law. In petitioners’
words:
Under the legal landscape in the Fifth Circuit at the
time which was part of the facts and circumstances, any
taxpayer remitting to the IRS knew that, barring some
affirmative indication of payment prior to assessment,
the remittance was a deposit. Petitioners’ remittance
prior to assessment without any indication that the
remittance be treated as a payment rather than a
deposit should govern. [Fn. ref. omitted.]
* * * * * * *
Petitioners’ position is not the application of
the “per se” rule that may indeed have been overruled
in principle by Baral, but is simply the application of
the facts and circumstances as Petitioners found them
at the time in order to determine whether the objective
circumstances indicated Petitioners’ intention to
direct that the remittance be treated as a deposit.
III. Analysis
A. Respondent’s Principal Argument
In Risman v. Commissioner, supra, we considered and rejected
respondent’s argument that, by operation of section 6513(b)(2), a
Form 4868 remittance is a payment as a matter of law. While the
emerging “weight of authority” contrary to Risman may, under the
appropriate circumstances, warrant a reconsideration of our
analysis therein, we do not undertake that exercise today. We do
not do so because we can sustain respondent’s determination on
the basis of his alternative argument that, even under a facts
and circumstances analysis, the 1994 remittance was a payment
rather than a deposit. See VanCanagan v. United States, 231 F.3d
at 1352-1353. Any comprehensive review of Risman must await the
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