- 23 - 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.Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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