                        T.C. Memo. 1996-437



                      UNITED STATES TAX COURT



                 ROBERT C. AUSTIN, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5429-95.                 Filed September 25, 1996.



     Merle R. Flagg, for petitioner.

     James F. Prothro, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     PARKER, Judge:   Respondent determined deficiencies in, and

additions to, petitioner's Federal income tax as follows:
                                         Additions to Tax
                               Sec.        Sec.        Sec.         Sec.
Year           Deficiency      6651       6653(a)      6654         6661
                                          1
1984           $8,723        $2,174        $444         ---      $2,181
                                           1
1985            7,871         1,929          406        ---       1,968
                                           1
1986           10,899         2,678          548        ---       2,725
1987           20,519         5,130          ---        ---         ---
1988           52,421         8,158          ---      3,353         ---
1990           11,351         2,838          ---        747         ---
1991           18,310         4,578          ---      1,053         ---
       1
           Plus 50 percent of the interest due on the deficiency.

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the taxable years before

the Court, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

       The issue to be decided is whether petitioner's remittance

in the form of a check in the amount of $19,789.96, sent to the

Internal Revenue Service with petitioner's 1988 Form 4868,

Application for Automatic Extension of Time to File U.S.

Individual Income Tax Return, on or about April 15, 1989, was a

payment of tax or a deposit in the nature of a cash bond.

                              FINDINGS OF FACT

       Some of the facts have been stipulated and are so found.

The stipulation of facts and the exhibits attached thereto are

incorporated herein by this reference.

       Petitioner resided in Greeneville, Tennessee, at the time he

filed his petition in this case.       In 1984, petitioner was 38

years of age.      Up to that time he had led a very sheltered and

privileged life.        He had no idea what his assets were and no idea
                               - 3 -

what his income was.   His father, a very successful businessman,

handled all of petitioner's investments and financial matters and

provided petitioner and his two sisters with a "protected and

cocooned life".

     During the years at issue, petitioner was an orchestra

conductor.   Sometime in 1984, petitioner moved from Chattanooga,

Tennessee, to Cheyenne, Wyoming, to conduct the Cheyenne Symphony

Orchestra.   In approximately 1986, petitioner left Wyoming and

moved to Texas in order to conduct the East Texas Symphony

Orchestra in Tyler, Texas.   Occasionally, petitioner made guest

appearances conducting other orchestras.    During 1988,

petitioner's principal job was conducting the East Texas Symphony

Orchestra.   Petitioner's income from conducting in 1988 was

approximately $43,000, the highest amount petitioner had ever

earned from conducting and what he considered a "handsome salary"

by the standards of his profession.    In 1989, petitioner was

fired from his job with the East Texas Symphony Orchestra, and

thereafter he moved from Lindale, Texas, to Dallas, Texas.

     A significant portion of petitioner's income derived from

investments his father had made in petitioner's name, including

securities and rental property.   Petitioner did not receive the

income from these investments directly.    The income was held in

an account at ROLICH, a corporation organized by petitioner's

father as a holding company to manage the assets that the father

had purchased and placed in the names of his three children.     The
                               - 4 -

name ROLICH was derived from the names of the three children:

Robert, Lisa, and Christine.   When petitioner needed money for

any reason, his father wired the funds to him.    ROLICH was a

family corporation, and each of the five family members (i.e.,

petitioner's father, mother, and the three children) was an

officer of ROLICH.

     In 1987, petitioner's father participated in a leveraged buy

out of UNAKA Corp. (UNAKA) and obtained petitioner's signature

pledging petitioner's assets in this buy out.    Petitioner was

unaware at that time that he owned substantial assets.

Petitioner and his sisters were named directors and officers of

UNAKA and were given annual salaries of $20,000 each.    After his

father's death, in 1990, petitioner learned for the first time

that he was an owner of UNAKA and that he was liable for a debt

of $40 million for the buy out.   UNAKA owned a number of

subsidiary companies, including Metals Engineering Company

(MECO), a company which manufactured metal folding furniture, and

Southern Packaging Company (SO-PAK), a company which produced

packaged military food rations.   Any dividends from MECO or SO-

PAK would have been paid to UNAKA as sole shareholder.

Petitioner does not know if he was an officer of MECO or of SO-

PAK during 1988.   During 1988, petitioner was paid $20,000 in

compensation from UNAKA as a director or officer; petitioner did

not receive this compensation directly and did not learn of it
                                - 5 -

until later.   Petitioner estimates he may have received a couple

of hundred dollars of dividend income from UNAKA in 1988.

     Petitioner was also a stockholder of the Austin Company.

The Austin Company was in the tobacco business and was the

company that petitioner's father worked for prior to his

retirement and the purchase of UNAKA.      Petitioner is unsure if he

received dividends from the Austin Company in 1988.      Petitioner

was not on the board of directors or an employee of the Austin

Company.

     Petitioner's father had caused a restaurant to be

constructed and had placed the property in petitioner's name.

This restaurant was the source of rental income to petitioner

during some of the years at issue.      As of April 15, 1989,

petitioner knew that the restaurant was being rented, although he

was unaware of the amounts of rental income or expenses.

     The only investment that petitioner ever made on his own was

the purchase of two condo time-shares located in Vail, Colorado.

Rental activity was sporadic, and petitioner ultimately disposed

of the time-shares at a loss.   Petitioner had purchased a house

in Wyoming as his residence while he worked there, and,

similarly, he had purchased a house in Lindale, Texas, when he

went to work for the East Texas Symphony Orchestra.      Petitioner

may have rented out one or both of these residences after he

moved out.   None of the real properties that petitioner himself

purchased produced any rental income during 1988.
                                - 6 -

     In 1988, petitioner's father borrowed approximately $60,000

to $70,000 in petitioner's name in order to purchase securities

for petitioner.    Petitioner was not aware of these transactions

until respondent's audit examination of the years before the

Court.

     Petitioner's grandfather had established a trust for the

benefit of his grandchildren.    Petitioner's share of the income

from this trust went to petitioner's father.    Petitioner was

unaware of this trust until respondent began the audit

examination.

     Petitioner's father had a power of attorney to act on

petitioner's behalf.    The records regarding petitioner's various

sources of income, including Forms 1099 and W-2, were mailed to

petitioner's father in Tennessee.    Petitioner's tax returns for

all of his taxable years up through 1983 had been prepared by his

father.    Petitioner for some reason copied the returns over in

his own handwriting and then signed them.    Petitioner's tax

returns for the taxable years 1981 through 1983 reported no tax

liability.

     Around 1984 petitioner's mother became seriously ill.      She

spent about half of her time in the hospital.    Petitioner's

father stayed with her while she was hospitalized during her

illness.    Apparently as a result of the mother's illness,

petitioner's father ceased the preparation of petitioner's tax
                                - 7 -

returns.1   The mother's condition continued to worsen, and she

died in August of 1989.    Petitioner's father died approximately a

year after his mother's death, in August of 1990.

     As of April 15, 1989, petitioner had not filed a Federal

income tax return since his return filed for the taxable year

1983.    Petitioner was aware that a Federal income tax return is

required to be filed for each year by April 15 of the following

year.    On April 15, 1989, petitioner prepared and mailed Form

4868, Application for Automatic Extension of Time to File U.S.

Individual Income Tax Return (Form 4868), for the taxable year

1988.    Petitioner entered the following figures on the Form 4868:

            Total tax liability             $22,345.00
            Federal income tax withheld       2,555.04
            BALANCE DUE                      19,789.96

Petitioner enclosed with the 1988 Form 4868 a check in the amount

of $19,789.96 (the remittance) to the Internal Revenue Service

(IRS).    Petitioner obtained $15,000 of the funds used for the

remittance from his account at ROLICH.      The memo line on the

check was blank.    In petitioner's check register, he noted that

the check was to IRS for "88 taxes".      Petitioner had initially

written the amount of the remittance in the check register as

$19,600, but he crossed out that figure and then wrote in

$19,789.96.    He made the change because he thought the round

     1
        However, the father remained active in managing his and
petitioner's investments. The leveraged buy out of UNAKA
occurred in 1987, and the loan to buy securities for petitioner
occurred in 1988.
                               - 8 -

figure "looked too pat," and he wanted to change it to something

that he felt "looked more logical".    Petitioner sent the check to

the IRS because if he owed any tax he wanted it to be paid.

     It was petitioner's intent in April of 1989 that if there

were any taxes due for 1988, the remittance would pay for those

taxes, or for any that might be due for the next year or the

previous year.   He wanted to be able to show "that I was not

trying to dodge my taxes, that I was trying to keep everything

paid."   He hoped that someday his father "would be able to go

back and deal with all this, that there would have not been any

liability to trigger any concern that there was an attempt to not

pay."

     The IRS received petitioner's 1988 Form 4868 and the

remittance and granted petitioner an extension of time to file

until August 15, 1989.   The IRS posted the remittance as a

payment for the taxable year 1988 and has always treated the

remittance as a payment of taxes.   That remittance was never

placed into a suspense account or an excess collection account,

and it was never treated by IRS as a deposit in the nature of a

cash bond.   The amount of the remittance has been shown on

petitioner's 1988 account as a payment since it was received by

the IRS.   As of the time of trial, no assessment had been made

for the taxable year 1988, and petitioner's 1988 account still

showed a credit balance of $19,789.96.
                                - 9 -

     Petitioner did not timely file his 1988 return or the

returns for the other years involved in this case, although he

did cooperate with respondent's agents during the audit in 1993

and 1994.   On January 9, 1995, respondent mailed three notices of

deficiency to petitioner:    one notice for the taxable years 1984

through 1986; another for the years 1987 and 1988; and the third

for the years 1990 and 1991.    On April 1, 1995, petitioner

prepared his 1988 tax return, and on April 7, 1995, he filed that

return and returns for the other years.    He filed his petition in

the Tax Court on April 10, 1995, challenging all of the

adjustments in the three notices of deficiency.

     During the trial session in Dallas, Texas, commencing

February 26, 1996, the parties filed their stipulation of agreed

issues that settled all issues in the case except one, leaving

for trial and for the Court's decision only the question of the

characterization of the remittance as a tax payment or a deposit.

It was during the settlement negotiations and the drafting of the

parties' stipulation of agreed issues that petitioner for the

first time raised the issue that the remittance was a deposit in

the nature of a cash bond.

                               OPINION

      This Court has jurisdiction to determine the existence and

amount of any overpayment of tax to be credited or refunded for

the year or years at issue.    Sec. 6512(b)(1).   However, section

6512(b)(3) limits the amount of the allowable credit or refund
                              - 10 -

based on the time of payment of the tax.    Where no return has

been filed, and no claim for a refund has been made, prior to the

issuance of the notice of deficiency, the amount of the refund is

limited to those amounts paid either (1) after the mailing of the

notice of deficiency or (2) within the 2-year period prior to the

date of the mailing of the notice.     Secs. 6512(b)(3), 6511(b)(2);

Commissioner v. Lundy, 516 U.S. ___, ___, 116 S.Ct. 647, 652

(1996); Gabelman v. Commissioner, 86 F.3d 609, 611 (6th Cir.

1996), affg. T.C. Memo. 1993-592.

     In the instant case, petitioner filed no return and made no

claim for a refund prior to the mailing of the notice of

deficiency.   The amount of petitioner's refund as determined by

this Court is limited to the amount of 1988 taxes paid in the 2-

year period preceding the mailing of the notice of deficiency on

January 9, 1995.2   The remittance was mailed to the IRS on April

15, 1989.   If the remittance constituted a payment of tax, rather

than a deposit, the refund of that amount is barred.     Gabelman v.

Commissioner, supra at 611.   Respondent argues that the


     2
       The parties have not suggested that any payments were made
after the notice of deficiency was mailed. However, consistent
with petitioner's argument that the remittance was a deposit in
the nature of a cash bond, it may be that petitioner regards the
date of filing of his 1988 tax return, on April 7, 1995, as the
date of payment and hence the date of overpayment of his tax.
See Risman v. Commissioner, 100 T.C. 191, 194, 203 (1993). For
this Court to have subject matter jurisdiction, there must first
be a payment of tax before this Court can determine the existence
and amount of any overpayment under sec. 6512(b). See Johnson v.
Commissioner, T.C. Memo. 1993-562.
                                - 11 -

remittance was a payment of tax, whereas petitioner argues that

it was a deposit in the nature of a cash bond.

     In Risman v. Commissioner, 100 T.C. 191, 197 (1993), an

earlier case involving a taxpayer's remittance with a Form 4868,

this Court stated that "A remittance by a taxpayer to respondent

generally will not be regarded as a payment of Federal income tax

until the taxpayer intends that the remittance satisfy what the

taxpayer regards as an existing tax liability."    We concluded

that "remittances made by taxpayers with Form 4868 extension

requests are not necessarily to be treated, as a matter of law,

as payments of tax as of the filing date of the associated income

tax return".    Id. at 203.   We applied instead a facts and

circumstances test in ascertaining the taxpayer's intent.

     In Risman v. Commissioner, supra, the taxpayers made a

remittance with a Form 4868 in an amount of $25,000 that bore no

good faith relationship to the taxpayers' tax liability for the

year specified, i.e., an arbitrary, disorderly, or random

remittance.    The IRS treated the remittance as a deposit by

placing it in a suspense account upon receipt.    The taxpayers

wrote to the IRS approximately 14 months later indicating that

the remittance had not been based on any estimate of their tax

liability for that year and that they expected the remittance

would be applied to future taxes owed on tax returns not yet

filed.   At the time of their letter, the taxpayers were

delinquent in filing the return for the year specified on the
                               - 12 -

Form 4868 and had requested an extension for the subsequent

year's return.   Based on those facts and circumstances, we held

that the taxpayers' remittance was a deposit.

     In the instant case, petitioner changed the amount of the

remittance from a round figure of $19,600 to $19,789.96.      He did

not want the amount of the remittance to look "too pat".      He

changed the figure to $19,789.96 so that it would look "more

logical".   In other words, petitioner wanted the amount of the

remittance to appear to be a valid, rather than a made-up,

figure.    Respondent treated petitioner's remittance as a payment

of tax.    Petitioner never contacted respondent regarding the

treatment of the remittance.     During 1993 and 1994, when

petitioner was cooperating fully with respondent's agents in the

audit, he never suggested that the remittance was merely a

deposit.    Shortly before trial, when the parties made their

calculations in connection with their settlement negotiations,

petitioner for the first time raised the issue as to whether the

remittance was a payment of tax or a deposit.

     Under the Golsen rule, "where the Court of Appeals to which

appeal lies has already passed upon the issue before us,

efficient and harmonious judicial administration calls for us to

follow the decision of that court."     Golsen v. Commissioner, 54

T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971).      An

appeal in this case would lie to the Court of Appeals for the
                              - 13 -

Sixth Circuit, which has now spoken definitively on the issue in

this case.

     After the parties submitted their briefs in the present

case, the Court of Appeals for the Sixth Circuit affirmed our

decision in Gabelman v. Commissioner, T.C. Memo. 1993-592, in

which the taxpayer voluntarily and in good faith prepared his

extension request and the accompanying check, and based on the

facts and circumstances, this Court held that the taxpayer's

remittance was a payment of tax.   Gabelman v. Commissioner, 86

F.3d 609 (6th Cir. 1996).   The Court of Appeals affirmed,

however, on the ground that remittances submitted with Forms 4868

are payments of tax as a matter of law.   Id. at 611-612.

     The Court of Appeals for the Sixth Circuit reasoned that

"The express language of the regulations[3] requires taxpayers to

submit an estimated payment of their taxes with Form 4868

extension requests" (emphasis in original) and also that such

remittances are analogous to the withholding of taxes and payment

of estimated taxes throughout the year, which are deemed paid on

April 15 of the following year and the due date of the return,

respectively, under section 6513(b).   Id. at 612.   The Sixth

Circuit rejected the contrary conclusion we had reached in our

opinion in Risman v. Commissioner, supra.   Also, the Court of

Appeals for the Sixth Circuit distinguished the situation in

     3
       The regulations referred to are sec. 1.6081-4(a)(4) and
1.6081-4(b), Income Tax Regs.
                               - 14 -

Gabelman v. Commissioner from that in Ameel v. United States, 426

F.2d 1270 (6th Cir. 1970), where the Sixth Circuit itself had

previously applied a facts and circumstances test in deciding

whether a taxpayer's remittance made during an audit qualified as

a deposit or payment.    Gabelman v. Commissioner, supra at 612-

613.

       Following the Golsen rule and applying the holding of the

Court of Appeals for the Sixth Circuit set forth in Gabelman v.

Commissioner, supra, that remittances submitted with Form 4868

extension requests are payments of tax as a matter of law, we

hold that the remittance in this case was a payment of tax, not a

deposit.

       In accordance with the parties' stipulation of agreed issues

and the above holding,

                                          An appropriate decision

                                     will be entered.
