Barbara Deaton - Page 23

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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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