OPINION
Pending before the court are the parties’ cross-motions for summary judgment. In this action, the plaintiff, Donald Boensel, seeks the recovery of $111,860 in federal estate tax, which the plaintiff remitted to the Internal Revenue Service (“IRS”) following the death of his father, John Boensel, in 1999. The core question in these motions for summary judgment is whether the remittance made by the plaintiff to the IRS following the death of his father in 1999 is more properly characterized as a tax deposit or as a tax payment. If the 1999 remittance is a tax deposit, then the plaintiff may be entitled to recover the amount claimed. However, if it is a tax payment, then the plaintiffs claim falls outside the three-year tax refund recovery period. For the reasons set forth below, the court finds that the 1999 remittance was a tax payment. As such, the plaintiffs claim to recover the alleged overpayment of estate tax is outside the recovery period. The plaintiffs motion for summary judgment is therefore DENIED; the government’s motion for summary judgment is GRANTED.
I. UNDISPUTED FACTS
Donald W. Boensel (“plaintiff’) was appointed executor of the estate of his father, John L. Boensel (“Mr. Boensel”). Defendant’s Proposed Finding of Uneontroverted Fact (“DPF”) 3. Mr. Boensel died on August 30, 1999 in Louisiana, about one year after the death of his wife, Thelma Boensel (“Mrs. Boensel”). DPF 1, 4. At the time of his father’s death, the plaintiff lived in California and was dealing with personal issues and the failure of his business. DPF 7. To handle the estate, the plaintiff retained the accountants (the firm of LaPorte, Sehrt, Romig & Hand) and lawyers (the firm of Liskow & Lewis) with whom his father had done business for years, and who had handled Mrs. Boensel’s estate only a year before. DPF 8-10. Because the value of Mr. Boensel’s assets remained virtually unchanged from the time of Mrs. Boensel’s death, the plaintiff did not believe that much additional work needed to be done to prepare his father’s estate tax returns. DPF 13. Although a federal estate tax return had been filed for Mrs. Boensel’s estate, Mr. and Mrs. Boensel had their attorneys arrange their financial affairs such that Mrs. Boensel would not incur any federal estate tax. Rather, through Mr. and Mrs. Boensel’s estate planning, the tax burden shifted to Mr. Boensel upon his death. DPF 84.
Using the information they had gathered for Mrs. Boensel’s estate and the information the plaintiff provided to them, the plaintiffs lawyers prepared a descriptive list of the assets they believed Mr. Boensel owned at the time of his death. DPF 16. The lawyers grouped Mr. Boensel’s property into three categories: a 1/2 interest in community property that Mr. Boensel held with Mrs. Boensel in which Mr. Boensel had disclaimed Mrs. Boensel’s interest after her death;
As the due dates for the state and federal estate tax returns grew closer, the plaintiffs lawyers became concerned that the returns would not be filed on time. DPF 27. In a letter dated April 30,1999, they informed the plaintiff that, while the time for filing the estate tax return could be extended by six months, “Interest, and possibly penalties, will accrue on any amount determined to be due that is not paid with the request for extension.” DPF 28; Def.’s Ex. 9. The plaintiffs accountants provided him with an estimate of the estate’s federal tax liabilities and advised him to remit $435,000 to the IRS by the original due date of the return, May 30,1999. Plaintiffs Proposed Findings of Uncontro-verted Fact (“PPF”) 1; DPF 32. The accountants suggested that the plaintiff include an additional amount of ten percent over the amount they estimated was owed as a “cushion.” Def.’s Exs. 1, Boensel Dep. 45:12-21,4. After the accountants provided him with the estimated federal estate tax liability, the plaintiff began gathering funds to “pay [] federal estate taxes.” DPF 36-38.
After making the $435,000 remittance, the plaintiff believed that he had no further obligations regarding his father’s federal estate taxes. DPF 57. However, in February 2005, the IRS sent the plaintiff a notice acknowledging that the estate had made a $435,000 payment on June 1, 1999, but stating that the plaintiff was still required to file an estate tax return. Def.’s Ex. 23. The plaintiff responded on March 1, 2005 by letter and promised to undertake the work necessary to complete the return, stating, “As you pointed out in your correspondence, $435,000 has been paid as estate tax in this matter, which I believe was about 10% more than the accounting estimate.” Def.’s Ex. 24. The plaintiff stated, “My recollection is that this was based on a recommendation by the accounting firm, LaPorte, Seht, Robig, et al, which was handling the estate and had created a tax return which may have been pro forma at that time.” Id. The IRS sent the
In completing the federal estate tax return for Mr. Boensel’s estate, the plaintiff used his accountants’ and attorneys’ work product from Mrs. Boensel’s estate, because not much had changed between her death and Mr. Boensel’s death. Def.’s Ex. 1, Boensel Dep. 31:10-32:19. Although the plaintiff reached out to his former accountants regarding the treatment of certain items on the return, he was unable to obtain any professional help and completed the return on his own. DPF 75. The IRS received the estate’s Form 706 tax return on September 6, 2006. DPF 76. After completing the Form 706, the plaintiff had some questions regarding the treatment of certain items on the return — particularly the deductibility of certain expenses from the estate — and listed particular items of concern in the cover letter he sent to the IRS with the return. DPF 80.
In total, the plaintiff reported an estate tax liability of $323,140 on the Form 706 return and reported a “prior payment” of $435,000. DPF 78. On the “balance due” line of the Form 706, the plaintiff hand wrote, “REFUND DUE <111,860>.” Id. The IRS assessed the amount of estate tax liability that was self-reported on the return, $323,140, and sent the plaintiff an estate closing document. DPF 101-102. The plaintiff responded by letter of September 28, 2007, pointing out that IRS records showed he had “made a payment of $435,000” in June of 1999 and that the Form 706 he filed in 2006 had claimed a refund of $111,860, and claiming that his refund was due plus interest from the date of the June 1, 1999 payment. DPF 103-04.
The IRS disallowed the plaintiffs claim for refund on December 17, 2007, on the grounds that it was untimely under 26 U.S.C. § 6511(b)(2).
II. DISCUSSION
A. Standard of Review
Pursuant to Rule 56 of the Rules of the Court of Federal Claims (“RCFC”), summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” RCFC 56(c)(1); see also Anderson v. Liberty Lobby, Inc.,
B. The Undisputed Facts Establish That the Plaintiffs Remittance Was a Payment of Tax and Not a Deposit.
At the time the plaintiff submitted his remittance to the IRS, the Internal Revenue Code did not by its terms authorize taxpayers to make “deposits” with the IRS to meet potential tax liabilities.
The law on deposits versus payments has evolved since the Supreme Court’s decision in Rosenman. The Federal Circuit, in applying Rosenman, has held that determining whether a remittance is a payment or a deposit involves consideration of the facts and circumstances of the case, with no one factor being conclusive. See VanCanagan v. United States,
Based on a consideration of each of these factors, the court finds that the balance tips in favor of the government in this case and thus the government is entitled to summary judgment on its contention that the plaintiffs remittance to the IRS in 1999 was a tax payment and not a tax deposit.
1. The fact that the estate tax had not been assessed at the time of the remittance is not determinative.
The plaintiff argues that the court should weigh the fact that the estate’s tax liability had not been assessed at the time of the plaintiffs remittance most heavily in favor of characterizing the remittance as a tax deposit. The defendant does not dispute that the estate tax liability had not been assessed at the time of the remittance, but argues that this factor alone is not controlling on the question of whether the remittance was a deposit or a payment. Def.’s Br. 39-40.
The court agrees with the government that the existence of an assessment does not control the outcome in this case. Nonetheless, it is clear that the absence of an assessment in this case is a factor that weighs in favor of the plaintiffs claim that the 1999 remittance was a deposit. For example, in Charles Leich, the Court of Claims held that where the government had made no assessment and the taxpayer continuously contested proposed liability, a remittance was a deposit and not a payment of tax. Charles Leich,
2. The remittance was not disorderly.
The plaintiff argues that the remittance should be deemed a deposit because it was disorderly and therefore could not be a “payment.” According to the plaintiff, the estate essentially “dump[ed] funds on the government in amounts which have no conceivable relationship to the temporarily undetermined liability.” PL’s Mot. Summ. J. 6, ECF No. 23. The government argues that the plaintiffs remittance was not disorderly because the remittance was made pursuant the recommendation of his accountants, who had the information needed to estimate the estate’s tax liability from both Mr. Boensel’s attorneys and the plaintiff. The government argues that the undisputed facts demonstrate that the remittance was based on a property list prepared by the lawyers and reviewed in detail by the estate’s accountants. The court agrees with the government.
In Northern Natural Gas, the Court of Claims explained that eases interpreting Ro-senman have “held that there is payment where a taxpayer makes a voluntary remittance based upon a bona fide estimate of an uncontested tax liability.” N. Natural Gas,
Where a taxpayer admits that it has some liability, but simply dumps funds on the government in amounts which have no conceivable relationship to the temporarily undetermined liability, we have no trouble holding that the remittance is not a bona fide payment.... [In other cases] we held that amounts remitted as estimates of admitted tax liabilities were “overpayments,” because they were “made incident to a bona fide and orderly discharge of the taxpayers’ actual or reasonably apparent duties.”
Id. (quoting Reading Co. v. United States,
The court finds that in the circumstances described above, the plaintiffs remittance was not a disorderly “dumping] of funds” with the IRS, but was based on a consideration of the known facts and a good faith estimate of the estate tax liability. Courts have held that lack of precision in the calculation of estimated taxes does not indicate that a remittance is not a payment of tax. See Blatt v. United States,
3. The taxpayer did not contest liability when he submitted the remittance nor in subsequent communications with the IRS.
There is no dispute here that the plaintiff did not contest the estate’s liability for the taxes when he submitted the remittance to the IRS. The plaintiff argues that the lack of protest is not determinative of the remittance’s classification. The plaintiff suggests that the plaintiff could not have protested any tax liability because a tax had not yet been assessed. The government argues that a taxpayer can contest liability without an assessment and that the plaintiff in this case gave no indication when the estate submitted the remittance to the IRS that it was contesting any tax liability. The government argues that this ease is wholly distinguishable from that in Rosenman, wherein the plaintiff submitted the remittance with a letter stating that the funds were submitted “under protest and duress.” Rosenman,
The court agrees with the government that the absence of any objection to the estate’s tax liability weighs in favor of the government’s contention that the remittance was a payment. Although no tax had been assessed at the time of the remittance, the plaintiff here had the opportunity to put the IRS on notice that he contested potential tax liability for his father’s estate when he submitted the remittance, but, in contrast to the plaintiffs in Rosenman, he did not. Indeed, in this case, the plaintiff apparently had no plans to contest liability until the IRS contacted the plaintiff regarding the estate’s overdue tax return several years after the plaintiff remitted funds to the IRS. The plaintiffs failure to state any objection to liability when he sent the remittance or to even contact the IRS after remitting the funds weighs heavily in favor of characterizing the remittance as a payment of tax in this case.
It is also not disputed in this case that the plaintiff did not indicate at the time the estate made the remittance that it was making a “deposit.” To the contrary, the evidence establishes that the plaintiff (1) referred to the remittance as a “payment” or as funds needed to “pay” or “satisfy” an “estate tax obligation”; (2) requested Hibernia Bank issue a check for $435,000 with a “memo-mark” of “Payment of Estimated Estate Taxes”; and (3) characterized the remittance to the IRS as a “payment” in all of his subsequent correspondence with the IRS. The plaintiff argues that the plaintiffs labeling of the remittance as a “payment” is not determinative of the remittance’s status and that the plaintiffs repeated references to “payment” should be taken as synonymous to “remittance,” rather than distinguishing the remittance from a “deposit.”
While the plaintiff is correct that a taxpayer’s act of labeling a remittance does not control the remittance’s classification, see New York Life,
The court also finds that the fact that tax had not been assessed at the time of the remittance does not alter this conclusion. The Federal Circuit has recognized that even where a remittance is made prior to an assessment, the remittance may be considered
5. The IRS did not view the remittance as a deposit.
The parties are in agreement that the IRS at all times treated the plaintiffs remittance as a payment of tax, rather than a deposit. The government argues that more weight should be afforded to this fact than does the plaintiff. Indeed, the Federal Circuit has held that, like the other factors to be considered, the IRS’s treatment of a remittance has import to the court’s analysis, but is not determinative. See VanCanagan,
6. The remittance was made at the time payment was due and was apparently accompanied by a request for an extension of time for filing the tax return.
The government contends that the fact that the plaintiff submitted the remittance on the day that the estate tax was due and in conjunction with a request — informal or otherwise — for an extension of time for filing the estate’s tax return lends support for a finding that the remittance was a payment of tax. Although there is no dispute that an extension was granted, the plaintiff argues that there is “no proof of a filed Form 4768” request for extension and that the court may thus not give any weight to the plaintiffs remittance on the date the estate tax as due.
The court agrees with the government that this factor, as most of the others considered, supports a finding that the plaintiff made a payment of tax rather than a deposit. The Federal Circuit held in VanCanagan that the fact that a remittance was accompanied by a Form 4868 request for an extension for filing an individual income tax return was evidence that the remittance was a tax “payment.” VanCanagan,
The court finds that although VanCanagan involved the payment of income tax, the Federal Circuit’s reasoning in that case is not distinguishable from this case simply because this case involves estate tax. Nor is the Federal Circuit’s reasoning distinguishable simply because the government has not been able to locate the plaintiffs formal request for an extension of time via Form 4768. Here, it is not disputed that the evidence indicates that the plaintiffs accounting firm was going to request, and the IRS indisputably granted, an extension of time. See PPF 3; DPF 44. The plaintiff has not in fact alleged that he did not submit a Form 4768 request, and, although that precise form has
7. Analysis of the facts and circumstances of the plaintiffs remittance leads the court to conclude that the remittance was a payment of estate tax.
The court finds based on all of the facts and circumstances of this case discussed above, that the plaintiffs June 1, 1999 remittance to the IRS was a payment of the tax for his father’s estate.
C. Revenue Procedure 84-58 Does Not Alter the Facts and Circumstances Test.
The plaintiff argues that the facts and circumstances test has been altered by Revenue Procedure 84-58 § 4.02 which provides, “A remittance made before the mailing of a notice of deficiency that is designated by the taxpayer in writing as a deposit in the nature of a cash bond will be treated as such by the Service.” Rev. Proc. 84-58 § 4.02(1). A later section provides, “Any undesignated remittance not described in section 4.03 made before the liability is proposed to the taxpayer in writing (e.g., before the issuance of a revenue agent’s or examiner’s report), will be treated by the Service as a deposit in the nature of a cash bond.” Id. § 4.04(1). The plaintiff contends, relying on the analysis in Huskins, that the effect of these regulations is that a remittance may either be “designate ed” as a deposit under § 4.02 or “not specifically designated” under § 4.04, but may not be designated as a payment, and, if “not specifically designated,” must be treated as a deposit. The defendant argues in response that the plaintiffs interpretation of these IRS procedures is inconsistent with the Federal Circuit’s ruling in VanCanagan. It also notes that the plaintiffs characterization of the remittance is an appropriate fact and circumstance to consider and suggests that Revenue Procedure § 4.04 applies only when there has been an IRS audit, which is not at issue here.
The court finds that the cited Revenue Procedures do not alter the facts and circumstances test and do not prevent a court from considering the plaintiffs characterization of a remittance when considering whether a remittance was a payment or deposit. In Huskins, the court conducted a lengthy analysis of the effect of Revenue Procedure 84-58 in the context of a remittance submitted with a cover letter that referred to the remittance as a “payment.” See Huskins,
The court in Huskins noted the government’s citation of VanCanagan, but did not discuss the import that VanCanagan might have on the interpretation of Revenue Procedure 84-58. In VanCanagan, the Federal Circuit noted that the IRS has a specific procedure by which a taxpayer may make a deposit, namely Revenue Procedure 84-58.
Here, the plaintiff did not elect to use the deposit procedure and therefore under the Federal Circuit’s holding in VanCanagan, discussed above, the court finds that Revenue Procedure 84-58 does not alter the court’s analysis of the facts and circumstances.
D. The Plaintiff is Not Entitled to Recover Any Overpayments Made More Than Three Years Before His Request for a Refund.
The plaintiff acknowledges that should the court find, as it has, that the 1999 remittance was a payment of tax, the plaintiff is not entitled to recover any portion of that payment. Indeed, 26 U.S.C. § 6511 provides, “[T]he amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return.” 26 U.S.C. § 6511(b)(2)(A). It is undisputed that the plaintiff filed the estate tax return on which he claimed an overpayment and sought a refund on September 6, 2006, well more than three years after his 1999 payment. See Def.’s Ex. 2. As such, the plaintiff is barred by 26 U.S.C. § 6511(b)(2)(A) from recovering any overpayment made in 1999.
III. CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is GRANTED and the plaintiffs motion for summary judgment is DENIED. The clerk is directed to enter judgment accordingly. Each party is to bear its own costs.
IT IS SO ORDERED.
Notes
. This community property included a home on Lark Street, certain securities, certain furniture, and jewelry.
. This community property included certain securities, real property in Iberville, Louisiana, and certain furniture.
. The plaintiff claims that what the accountants provided him with was a "guesstimate” of the estate tax liability. Pl.’s Mot. Summ. J. 6, ECF No. 23.
.The IRS has not been able to provide a copy of any Form 4768 request for extension submitted for Mr. Boensel’s estate and the plaintiff contests whether the plaintiff actually submitted such a form. The plaintiff does not, however, dispute that an extension was granted by the IRS.
. 26 U.S.C. § 6511(b)(2) provides, "[T]he amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return.”
. Now Internal Revenue Code § 6603, enacted in 2004, provides the statutory mechanism for making a deposit of tax:
A taxpayer may make a cash deposit with the Secretary which may be used by the Secretary to pay any tax imposed under subtitle A or B or chapter 41, 42, 43, or 44 which has not been assessed at the time of the deposit. Such a deposit shall be made in such manner as the Secretary shall prescribe.
I.R.C. § 6603(a).
. The court in Huskins acknowledged that the Supreme Court has rejected the notion that all remittances made prior to the actual assessment of a tax liability are deposits, see Huskins, 75 Fed.Cl. at 671 n. 14, but treated this factor as the most important, analyzing other factors, including the plaintiff’s labeling of the remittance as a "payment,” in the context of the court’s finding that the remittance was "an 'interim arrangement to cover whatever contingencies the future might define.’ ” Id. at 676 (quoting Rosenman,
. The Federal Circuit held in VanCanagan that an accountant's "characterization of the ... remittance as a ‘deposit,’ made more than 5 1/2 years after the extension application was filed and the remittance made, is insufficient to raise any valid factual issue on whether the ... remittance was a deposit” where the plaintiffs had otherwise at no prior time characterized the remittance at a deposit. VanCanagan,
. For this reason, the court need not reach the parties' dispute regarding whether Revenue Procedure 84-58 § 4.04 applies only in the context of an audit, see Gabelman v. Commissioner of Internal Revenue,
Except as provided in sections 4.04(1) [regarding audits] and 4.05(3) [in the context of over-payments after a notice of deficiency], a remittance that is not designated as a deposit (an "undesignated remittance”) will be treated as a payment and applied by the Service against any outstanding liability for taxes, penalties or interest.
Id. § 4.01(2). Further, as noted above, Internal Revenue Code § 6603, enacted in 2004, now provides the statutory mechanism for making a deposit of tax.