The government filed a motion to dismiss for failure to state a claim upon which relief could be granted, and the district court granted the government's motion. We find that the district court properly dismissed this case in reliance upon United States v. Miller, 315 F.2d 354 (10th Cir. 1963). The taxpayers tried to distinguish Miller by pointing out that it was decided under the predecessor to the present Internal Revenue Code. However, the operative language in the code as it existed at the time Miller was decided is virtually identical to the code language that now exists.

Although in 1956 the Court of Appeals for the Eighth Circuit followed the Mercantile National Bank per se rule, United States v. Dubuque Packing Co., 233 F.2d 453, 460-62 (8th Cir. 1956), nearly every other court considering the question of when tax was "paid" has adopted a course in conflict with that rule. See Ameel v. United States, 426 F.2d 1270, 1272-73 (6th Cir. 1970); Fortugno v. Commissioner, supra, 353 F.2d at 435; United States v. Miller, 315 F.2d 354, 358 (10th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 335, 11 L.Ed.2d 267 (1963); Colts' Mfg Co. v. Commissioner, 306 F.2d 929, 932-33 (2d Cir. 1962); Hill v. United States, 263 F.2d 885, 887 (3d Cir. 1959); Rose v. United States, 256 F.2d 223, 226-27 (3d Cir. 1958); Lewyt Corp. v. Commissioner, 215 F.2d 518, 522-23 (2d Cir. 1954), aff'd in part, rev'd in part on other grounds, 349 U.S. 237, 75 S.Ct. 736, 99 L.Ed. 1029 (1955); Richardson v. Smith, 196 F. Supp. 432, 433 (E.D.Pa. 1961), aff'd per curiam, 301 F.2d 305 (3d Cir. 1962); Northern Natural Gas Co. v. United States, 354 F.2d 310, 315-16, 173 Ct.Cl. 881 (1965); Charles Leich Co. v. United States, 329 F.2d 649, 653, 165 Ct.Cl. 127 (1964). The great weight of authority indicates that an examination of taxpayer intent has been an important factor in determining whether a remittance is "payment" of tax.

Obviously, this has nothing to do with Rosenman as it deals with a situation in which the case law is not applicable, there being an act of Congress that controls. Similarly, Ford cites United States v. Miller, 315 F.2d 354 (10th Cir. 1963). Miller dealt with a married couple who had paid "estimated tax" for two years for which they actually owed no tax. Outside the limitations period, they applied to get it back.

And yet a significant number of courts (including courts in jurisdictions that have expressly adopted the "facts and circumstances" test, see, e.g., Gabelman v. Commissioner, 86 F.3d 609, 612 (6th Cir. 1996)) have held that certain types of remittances can categorically be deemed payments. See, e.g., United States v. Miller, 315 F.2d 354, 358-59 (10th Cir. 1963) (holding that a remittance of estimated income tax becomes a payment on the date that the declaration of estimated income tax was filed); Hill v. United States, 263 F.2d 885, 887 (3d Cir. 1959) (holding that a remittance made in conjunction with the submission of a tax return is ordinarily a payment rather than a deposit). We believe that in cases in which, unlike Rosenman, the Internal Revenue Code explicitly defines a particular type of remittance as a payment, a factual inquiry is unnecessary to determine whether a remittance is a payment or a deposit, for in such cases the statutory delineation dominates over the circumstances of the particular remittance at issue.

To the same effect, see 10 J. Mertens, supra at § 58.27. But cf. United States v. Miller, 315 F.2d 354, 357-58 (10th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 64, 11 L.Ed.2d 57 (1963). Therefore, I cannot accept the majority's statement that "the absence of tax liability for the year in respect of which payment was made does not affect the status of the remittances as payments of tax" in the context of this case.

H.Rep. No. 510, 78th Cong., 1st Sess., 48 (1943). For authority supporting this view, see United States v. Miller, 315 F.2d 354 (10th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 64, 11 L.Ed.2d 57 (1963). See also Hill v. United States, 263 F.2d 885 (3d Cir. 1959).

There taxpayers were not making disorderly remittances nor were they contesting the liability. Cf. United States v. Miller, 315 F.2d 354 (10th Cir. 1963). See Rosenman v. United States, supra, where taxpayer remitted the amounts under protest and duress and specifically stated that the amounts remitted were only for the purpose of stopping the running of interest.

ated 1957 income taxes but had not filed tax returns claiming refund for tax years 1957-1960 until 1962, was barred by limitation statute from maintaining such refund claim notwithstanding his assertion that remittances of estimated taxes merely were payments "on account" in nature of deposits in escrow, since 26 U.S.C. § 6511(b)(2)(A) provides that claim for credit of tax overpayment may not be asserted for overpayment made more than 3 years prior to claim); Binder v. United States, 590 F.2d 68, 69-71 (3d Cir. 1978) (suit seeking to recover monies that taxpayer and his employer had paid as "escrow payments" of estimated income taxes and withholding taxes was time barred because amounts were deemed "paid" more than 3 years before plaintiff filed his administrative refund claim, where taxpayer failed to show that he or his employer, in making such payments, in any way indicated that such money was to be set aside in suspense account or otherwise until his tax liability was determined); United States v. Miller, 315 F.2d 354 (10th Cir. 1963) (payments made by taxpayers in January of 1953 and 1954, unaccompanied by tax returns were payments mistakenly made as estimated income tax for 1952 and 1953, rather than voluntary remittances, and claim for refund made in 1960, along with filing of returns for 1952 and 1953 showing no taxes due for such years, was barred by 3 year statute of limitations); In Matter of Sims, 1991 WL 253017, 71 AFTR 2d 93-4023, 91-2 USTC ¶ 50,510 (Bkrtcy.E.D.La. Aug.28, 1991) (taxpayer who filed 1982 return requesting that his overpayment be applied toward his estimated taxes for year 1983, which was deemed paid on April 15, 1984, but who did not file his 1983 return until March 30, 1989 was not entitled to have his claimed overpayment for 1983 applied toward his estimated taxes for 1984, since claim for such credit was barred by 3-year statute of limitations of 26 U.S.C. § 6511(b)(2)(A)). THE COMPLAINT FAILS TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTEDPlaintiff's Claim That He Made a "Deposit" of

The Tenth Circuit has held, however, that estimated tax payments, required by the tax code, are deemed paid despite the fact that actual tax liability is not determined until later after a tax return is filed. Weigand, 760 F.2d at 1074; United States v. Miller, 315 F.2d 354 (10th Cir.1963). Thus, under Rosenman and Weigand, the determinative factor is whether the payment tendered to the IRS is required by the code, or is voluntarily submitted.

Dowell v. Commissioner, 41 T.C.M. (CCH) 390 (aff'd in 10th Cir. in an unpublished opinion); Draper v. Commissioner, 32 T.C. 545 (1959); Fortugano v. Commissioner, 41 T.C. 316 (1963), aff'd, 353 F.2d 429 (3d Cir. 1965); Northern Natural Gas Co. v. United States, 354 F.2d 310, 173 Ct.Cl. 881 (1965); Moskowitz v. United States, 285 F.2d 451, 152 Ct.Cl. 412 (1961); Richardson v. Smith, 301 F.2d 305 (3d Cir. 1962); Hill v. United States, 263 F.2d 885 (3d Cir. 1959); Rose v. United States, 256 F.2d 223 (3d Cir. 1958); Binder, supra.Colt's Manufacturing Co. v. Commissioner, 306 F.2d 929 (2d Cir. 1962); Ewing v. United States, 914 F.2d 499 (4th Cir. 1990); Ameel v. United States, 426 F.2d 1270 (6th Cir. 1970); United States v. Miller, 315 F.2d 354 (10th Cir. 1963).Thomas v. Mercantile Nat'l Bank at Dallas, 204 F.2d 943 (5th Cir. 1953); Ford, Jr., et al. v. United States, 618 F.2d 357 (5th Cir. 1980); Plankinton v. United States, 267 F.2d 278 (7th Cir. 1959); United States v. Dubuque Packing Co., 233 F.2d 453 (8th Cir. 1956); Estate of Goetz v. United States, 286 F. Supp. 128 (W.D.Mo. 1968).