MEMORANDUM OPINION

TIETJENS, Judge: This case is on remand from the Court of Appeals for the Tenth Circuit. The circuit court, 614 F.2d 1263">614 F.2d 1263 (1980), reversing our decision in 68 T.C. 646">68 T.C. 646 (1977), held that the filing of a nonfraudulent amended return starts the running of the statute of limitations under section 6501(a)¹ and that respondent's notice of deficiency for the years1980 Tax Ct. Memo LEXIS 70">*72 1963 through 1966, mailed over six years after the filing of petitioners' amended nonfraudulent returns, was therefore untimely. Petitioners filed a motion for this Court to enter a decision that no deficiency exists for 1965 and that petitioners are entitled to refunds for the following overpayments:

Respondent objected to petitioners' Motion for Entry of Decision and filed a motion urging us to enter a decision that there are no deficiencies due from nor overpayments due to petitioners for the taxable years 1963 through 1966. The sole issue for our determination at this time is whether petitioners are entitled to overpayments for 1963, 1964, and 1966.

The facts of this case are fully stipulated. Most of the facts relevant to this issue appear in our earlier decision but for the sake of clarity and continuity, we will repeat them briefly as well as newly enunciate those facts in the stipulated record that are only pertinent here.

Petitioners1980 Tax Ct. Memo LEXIS 70">*73 filed fraudulent original returns for 1963 through 1966 which showed the following tax liabilities:

On September 13, 1968 for the years 1965 and 1966 and on November 25, 1968 for the years 1963 and 1964, petitioners filed amended nonfraudulent returns which showed the following additional tax liabilities:

Attached to petitioners' amended returns were remittances for these amounts and each amended return is marked "Received with Remittance" by the Internal Revenue Service.

A statement identical in all material respects to the following was attached to each of petitioners' amended returns:

Payment attached to this amended 1963 return, is hereby made under protest. We feel that the amount of deposits in question represents funds received for political purposes and gifts. These funds were used for political purposes.

We hope and feel that eventually we will be able to get a more precise record of these funds.

On December 11, 1964, respondent mailed petitioners a notice of deficiency.1980 Tax Ct. Memo LEXIS 70">*74 In the statement schedule, only the additional amount of $2,111.33 submitted with petitioners' 1965 amended return is shown as having been credited to petitioners' account. The remaining $8,310.32 which was submitted with petitioners' amended returns for 1963, 1964, and 1966 was not so applied; rather, these remittances were held by respondent in a suspense account.

In petitioners' petition filed with this Court on March 11, 1975, petitioners include among facts upon which they rely as the basis for their case the assertion that:

5C. The amended delinquent returns for the four years were submitted with cash remittances of $8,310.32. The remittances submitted with the returns were not credited to other tax deficiencies which the Internal Revenue Service has since taken collection action on and it has been necessary for the taxpayers to make payment in full of these other liabilities, the Commissioner having applied, prior to any notice of deficiency, the cash remittances accompanying the amended delinquent returns as being tax paid that applies to the tax liability indicated on said amended delinquent returns, all in accord with the income tax self-assessment system.

In their1980 Tax Ct. Memo LEXIS 70">*75 reply submitted to this Court on June 2, 1975, petitioners maintained:

5.AS TO RETURNS FILED UNDER PROTEST:

A. The allegation in paragraph 5.B. of the Respondent's Answer alleges that the amended returns for the years 1963, 1964, 1965, and 1966 were filed under protest is not true. These returns were not filed under protest. Payment of the tax was made under protest in that the tax advisor obviously had a concern over prior tax law that required payment to be made under protest as a requisite to a later refund claim.

Finally, in the stipulation of facts, the parties stipulated that:

25. Petitioners do not contest respondent's determination of taxable income and income tax liabilities, together with additions to the taxes, for their taxable years 1963, 1964, 1965, and 1966, as set forth in the statutory notice of deficiency.

Petitioners maintain that the remittances are overpayments which this Court has jurisdiction to refund to them. Their argument is rooted in their interpretation of Rosenman v. United States,323 U.S. 658">323 U.S. 658 (1945) that there is no payment upon a remittance to a suspense account. Petitioners assert that since respondent placed $8,310.321980 Tax Ct. Memo LEXIS 70">*76 in a suspense account and did not assess petitioners' 1963, 1964, and 1966 amended returns until September 26, 1977, payment was not made until that time.

Respondent, by contrast, contends that the remittances attached to petitioners' amended returns were payments in 1968 because petitioners intended to satisfy defined tax liabilities. If the remittances are held to be payments, respondent proceeds with his argument, since they are not in excess of petitioners' tax liabilities, were not erroneously or illegally collected, and did not cause the Government to be enriched unjustly, respondent can retain the remittances. Finally, respondent argues that the amounts shown on the face of the amended returns are not to be reduced by reason of the statements of protest attached to the returns.

We hold for the respondent.

Section 6512(b)(1) confers jurisdiction on this Court to determine an overpayment which is refundable to the taxpayer when the Tax Court decision becomes final. ²Section 6512(b)(2) limits this amount to only that portion paid either after the deficiency notice was mailed,1980 Tax Ct. Memo LEXIS 70">*77 or within the period of limitations for filing a refund claim under section 6511(b)(2), (c), (d), or (g) which could have been refundable if on the date the notice of deficiency was mailed a claim had been filed, or under certain specific conditions where a timely refund claim was actually filed. In the instant case, therefore, since no refund claim was ever filed, we may only determine the existence of an overpayment refundable to petitioners if we find that the remittances were payments after December 11, 1972. ³

1980 Tax Ct. Memo LEXIS 70">*78 The record shows that petitioners' 1963, 1964, and 1966 returns were "assessed" on September 26, 1977. ⁴ We have repeatedly held, however, that an assessment is not a prerequisite to a payment. ⁵Fortugno v. Commissioner,41 T.C. 316">41 T.C. 316 (1963), affd. 353 F.2d 429">353 F.2d 429 (3d Cir. 1965); Draper v. Commissioner,32 T.C. 545">32 T.C. 545 (1959); Arheit v. Commissioner,31 T.C. 46">31 T.C. 46 (1958).

1980 Tax Ct. Memo LEXIS 70">*79 Where there has been no assessment, the test we have applied to determine when payment has been made is one drawn from 323 U.S. 658">Rosenman v. United States,supra. See, e.g. 41 T.C. 316">Fortugno v. Commissioner,supra;Lewyt Corp. v. Commissioner, 18 T.C. 1245">18 T.C. 1245 (1952), affd. 215 F.2d 518">215 F.2d 518 (2d Cir. 1954).

The Supreme Court, in Rosenman, held that a taxpayer's remittance which is coupled with a clear statement that the money was intended solely to avoid the accumulation of interest and penalties and which the Government placed in a suspense account does not constitute a payment. ⁶ Petitioners would have us read Rosenman as creating a rule that we look only to respondent's actions to determine the time a remittance becomes a payment. Petitioners argue that a taxpayer's "intentions in making a remittance are not controlling; at most they may bear upon what the Commissioner does with such remittance." Respondent, however, urges us to accept the converse: that petitioners' intent is the critical factor in determining when a payment1980 Tax Ct. Memo LEXIS 70">*80 is made and that respondent's acts are of lesser significance.

In Rosenman, there was a correspondence between the taxpayer's express intent to make a deposit and not a payment and the Commissioner's placing the remittance in a suspense account. Here, where there is no clear direction by the taxpayer that the remittance was made solely to avoid interest and penalties and where both petitioners' and respondent's actions have been inconsistent, ⁷ the parties wish us to decide the pivotal element of the two factors present in Rosenman.

1980 Tax Ct. Memo LEXIS 70">*81 We hold that it is a taxpayer's intentions which control the determination of whether a remittance is a deposit or a payment. ⁸ Although our decisions on this issue have sometimes referred to respondent's actions, we have always given his actions secondary emphasis and have used them as a means to interpret a taxpayer's intent. See, e.g. 41 T.C. 316">Fortugno v. Commissioner, supra.

Indeed, the Court of Appeals for the Tenth Circuit, to which an appeal in this case would lie, has indicated its position is consonant with the test we are applying herein. ⁹ In United States v. Miller, 315 F.2d 354">315 F.2d 354, 315 F.2d 354">356 (10th Cir. 1963), a case involving payment of estimated taxes, the court stated:

1980 Tax Ct. Memo LEXIS 70">*82 The manner in which the two checks were handled in the Director's office is not dispositive of the case. We express no opinion as to the validity or propriety of the procedures followed. As we appraise the situation, the unilateral actions of the Director made without the knowledge or acquiescence of the taxpayers do not determine whether the checks were voluntary remittances or were in discharge of an obligation imposed by the federal income tax statutes.

Examining petitioners' intentions in 1968 when they filed amended returns for 1963, 1964, and 1966, we find that petitioners intended to discharge a defined tax liability and, therefore, that their remittances were payments in that year.

Essentially, when a taxpayer files a return together with a remittance, the taxpayer is assumed to be making a payment at that time. ¹⁰ Courts have found two principal exceptions to this assumption: ¹¹ (1) where a remittance is accompanied by a contest of liability for the tax, such as an express statement1980 Tax Ct. Memo LEXIS 70">*83 that the remittance is being made solely for the purpose of avoiding interest and penalties, ¹² or a remittance is concomitant with a claim for a refund ¹³ or an offer of compromise; ¹⁴ and (2) where the remittance is "disorderly" or "a dumping" in that there is no indication on the return of how the taxpayer arrived at his or her asserted tax liability. ¹⁵

1980 Tax Ct. Memo LEXIS 70">*84 In the instant case, petitioners' remittances accompanied their respective amended returns. They were not "disorderly" but clearly reflected the items of income and deductions asserted on these returns. Likewise, we find that petitioners did not contest their liabilities for 1963, 1964, and 1966. Firstly, petitioners' amended returns for the years in issue were not joined with claims for a refund. ¹⁶ Secondly, these returns were not accompanied by offers of compromise. Finally, no statement was attached to petitioners' amended return which would indicate that the remittances were being made solely to avoid interest and penalty charges.

1980 Tax Ct. Memo LEXIS 70">*85 The statement attached to each amended return at issue ¹⁷ indicated that a portion of petitioners' income represented funds received for political contributions or gifts and that they hoped eventually to substantiate this assertion. Yet, there is no further evidence that this protest was seriously pursued. No claim for a refund was ever filed. In the pleadings and in the stipulation of this case, moreover, there appears to be a disavowal or at least an abandonment of any contest. Petitioners' reply states these statements were never intended to be a protest but were intended to allow petitioners the option of filing refund claims should they later so desire. In addition, in paragraph 25 of the stipulation, petitioners agreed to respondent's calculation of their correct tax liabilities for all of the years 1963 through 1966.

On the particular facts of the case, we hold that the remittances accompanying petitioners' amended returns1980 Tax Ct. Memo LEXIS 70">*86 for 1963, 1964, and 1966 were payments prior to December 12, 1972. Consequently, we have no jurisdiction to determine the existence of any overpayments. Respondent's motion and petitioners' motion insofar as pertains to a finding of no deficiency for the taxable years 1963, 1964, 1965, and 1966 are, therefore, granted. In all other respects, as pertains to any overpayments, both petitioners' and respondent's motions are moot.

An appropriate order will be entered.