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deposit, and the taxpayers effectively confirmed their
understanding of that treatment in writing approximately 14
months later, well before the Commissioner recharacterized the
remittance as a payment in his records.18 In the instant case,
petitioners did not claim deposit status until approximately 6-
1/2 years after they made the 1994 remittance, and they did so
only in response to respondent’s commencement of collection
activity.19 Furthermore, in Risman v. Commissioner, supra at 198,
we found that the taxpayers arbitrarily chose the amount of the
18 The Commissioner apparently recharacterized the
remittance as a payment solely on the theory that it was a
payment as a matter of law. See Risman v. Commissioner, 100 T.C.
191, 198 (1993) (Commissioner did not dispute that, under a facts
and circumstances analysis, the remittance would be treated as a
deposit).
19 A more analogous case is VanCanagan v. United States,
231 F.3d 1349 (Fed. Cir. 2000). In that case, the taxpayers
sought to avoid dismissal of their refund suit on the strength of
an affidavit of the accountant who had prepared the Form 4868
accompanying the remittance at issue. In upholding the trial
court’s dismissal, the Court of Appeals for the Federal Circuit
stated:
The accountant’s explanation of what he did and his
characterization of the $150,000 remittance as a
“deposit,” made more than 5 � years after the extension
application was filed and the remittance made, is
insufficient to raise any valid factual issue on
whether the $150,000 remittance was a deposit.
Id. at 1354. While we do not suggest that the noncontemporaneous
statements of a taxpayer’s representative, standing alone, are
never sufficient to corroborate that taxpayer’s claimed intent
with regard to a remittance, we do submit that such statements
are particularly suspect where, as is apparently the case here,
the representative did not represent the taxpayer in connection
with the remittance.
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