In so arguing, respondent seeks a ruling that any remittance made with a request for extension of time to file a return is a payment as a matter of law regardless of the facts and circumstances, a position that is contrary to the Court's existing precedent. See Risman v. Commissioner, 100 T.C. 191 (1993) (holding that a Form 4868 remittance is not a payment as a matter of law and that the character of the remittance is determined by examining the facts and circumstances). Alternatively, respondent argues that, applying the Court's facts and circumstances test, "there is no evidence that petitioner intended his remittance to be a deposit" and that he is entitled to summary judgment on that ground alone.
There is no evidence that when petitioner made the remittance she intended it to apply to 2001 or that she intended to make a tax deposit. See Risman v. Commissioner, 100 T.C. 191, 197 (1993) (stating that "[a] taxpayer's intent to have a remittance treated as a payment or as a mere deposit is generally to be established by all of the relevant facts and circumstances");Deaton v. Commissioner, T.C. Memo. 2005-1, aff'd, 440 F.3d 223 (5th Cir. 2006). Thus, to the extent the 2000 remittance exceeds petitioner's 2000 tax liability, it was an overpayment of tax for 2000.
"[A] disorderly or random remittance (that is made by a taxpayer arbitrarily, without regard to an orderly, apparent, or reasonably possible ultimate tax liability, and that is made prior to any determination by respondent of the taxpayer's tax liability) will generally be regarded not as a payment of tax but as a mere deposit." Risman v. Comm'r, 100 T.C. 191, 198 (1993) (citing N. Nat. Gas Co. v. United States, 354 F.2d 310, 315 (Ct. Cl. 1965)); Fortugno, 353 F.2d at 435 (similar). In a dispute like this one, where a taxpayer responds to a purported assessment with a remittance styled as a deposit, it strikes us that the taxpayer's intent will always conflict with the IRS's treatment of the remittance.
One of the cases cited by the Ertmans involved a Form 4868. See Risman v. Comm'r, 100 T.C. 191, 1993 WL 72856 (1993). The remaining cases did not address a Form 4868, but instead, arose under distinguishable tax situations.
In England v. United States, 760 F. Supp. 186 (D.Kan. 1991), the court held that as a matter of law, remittances accompanied with an IRS Form 4868 application for extension are payments of estimated tax which are subject to the statute of limitations under Section 6511(a). But see Risman v. Comm'r of Internal Revenue, 100 T.C. 191, 199, 1993 WL 72856 (U.S.T.C. 1993) (criticizing holding in England that filing of Form 4868 with remittance is automatically deemed an estimated payment). Similarly, in the present case Mr. McGill mailed a check for $7,000 accompanied with an application for a filing extension.