Malachinski v. Commissioner

T.C. Memo. 1999-182

UNITED STATES TAX COURT

LEON S. MALACHINSKI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13501-94. Filed June 1, 1999.

Michael G. Boylan, for petitioner.

Joseph T. Ferrick, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

GALE, Judge: Respondent determined a deficiency of $43,750

in petitioner’s Federal income taxes for 1980 and an addition to

tax of $2,188 under section 6653(a).1 Respondent also determined

1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
(continued...)
 - 2 -

that, once the deficiency is determined, petitioner is liable for

increased interest on an underpayment attributable to a tax-

motivated transaction as defined in section 6621(c). After

concessions,2 the issues remaining for decision are: (1) Whether

petitioner executed a valid consent to extend the period of

limitations for assessment and collection of the taxes and

addition to tax at issue and (2) whether petitioner is entitled

to a credit of $20,400 for the taxable year in issue.

FINDINGS OF FACT

The parties filed a stipulation of facts, a supplemental

stipulation of facts, and a second supplemental stipulation of

facts, each with attached exhibits. The facts reflected therein

are so found and are incorporated herein.

Petitioner Leon S. Malachinski was a resident of Naperville,

Illinois, when the petition herein was filed. Petitioner and

Wynne Malachinski (Wynne) were married in May of 1980. During

the taxable year in issue, they both were physicians. For a

time, they operated a medical practice together. They filed a

1
(...continued)
all Rule references are to the Tax Court Rules of Practice and
Procedure.
2
The parties have executed a stipulation of settled issues
wherein they have settled all questions relating to the amount
of, and petitioner’s liability for, the Federal income taxes and
addition to tax and increased interest for the year at issue,
other than the questions set forth above.
 - 3 -

joint Federal income tax return for their taxable year 1980 on

April 15, 1981.

Late in 1982 or early in 1983, respondent’s agents called

petitioner with respect to the 1980 Federal income tax return.

Petitioner then sought the advice of Vincent Arnone, his tax

return preparer. Petitioner and Wynne granted a power of

attorney to Mr. Arnone and to attorney Eugene F. LaPorte on

March 31, 1983.

Wynne filed for divorce in March of 1983 but delayed telling

petitioner of the filing until approximately a month later.

On May 23, 1983, revenue agent Alan Neubauer sent a letter

addressed to petitioner and Wynne, requesting that they sign and

return an enclosed Form 872-A, Special Consent to Extend the Time

to Assess Tax, for their 1980 tax year. On or about June 8,

1983, the Internal Revenue Service received the Form 872-A, which

had been dated June 1, 1983, and which bore the handwritten names

of both petitioner and Wynne. An official of the IRS

countersigned the Form 872-A on June 8, 1983.

Three days later, on June 11, 1983, petitioner and Wynne

granted another power of attorney to John R. Ostrand, C.P.A., and

Stephen B. Mack, C.P.A. The power of attorney was originally

prepared on May 23, 1983.

On September 1, 1983, Wynne issued a separate power of

attorney naming as her representatives before the IRS two
 - 4 -

attorneys, Anthony G. Scariano and Justino D. Petrarca, and a

certified public accountant, Michael J. Moxley.

Petitioner and Wynne continued to practice medicine together

until they were divorced in March of 1984.

On March 27, 1984, petitioner filed a separate tax return

for his taxable year 1982. The next month, acting on advice from

one of his advisers, petitioner sent to the IRS a $20,400

remittance with respect to his and Wynne’s Federal income tax

account for 1980. The IRS prepared a voucher, with a handwritten

entry reflecting this amount as a “cash bond”. A section of the

voucher was also checked, indicating that the amount was an

“Advance payment on deficiency”. The voucher did not have a

separate section for indicating that the remittance was in the

nature of a cash bond or a deposit.

Petitioner’s representative, Mr. Mack, met with respondent’s

agent Neubauer on June 29, 1984, to discuss issues relating to

petitioner’s taxes. On July 24, 1985, respondent issued an

examination report to petitioner and to Wynne for their 1980 tax

year, indicating, inter alia, that they had a deficiency in

income tax of $91,086.

On August 20, 1985, petitioner executed his third power of

attorney, this time naming Glenn Aquino, a certified public

accountant with the accounting firm Coopers & Lybrand. On the

same date, Mr. Aquino filed a protest with respondent on behalf
 - 5 -

of petitioner and Wynne. A week later, respondent returned the

protest, seeking additional information. In response, Mr. Aquino

filed a revised protest on September 12, 1985.

A child custody contest arose between petitioner and Wynne.

In late September or early October of 1985, petitioner filed for

sole custody of the two Malachinski children. In May of 1986,

however, Wynne was awarded sole custody of the children. In

October of 1987, an appellate court reversed the award of custody

and granted full custody of the children to petitioner.

In April of 1988, the IRS transferred to petitioner’s 1982

Federal income tax account the $20,400 remittance that petitioner

had made with respect to his and Wynne’s 1980 account. The IRS

transcript of account indicates that approximately 6 months

later, in October 1988, the $20,400, plus $902 in interest, was

refunded. The IRS no longer has a copy of the check by which the

refund was paid.

On December 14, 1988, petitioner executed a fourth power of

attorney, naming attorney Michael G. Boylan and authorizing him

to represent petitioner before the IRS. On August 16, 1989, Mr.

Boylan wrote to the IRS, stating that petitioner had not been

able to secure Wynne’s approval of a proposed settlement.

In the meantime, Claudine Mellerke became an employee and a

friend of Wynne’s. Late in 1989, Wynne began to complain

bitterly about petitioner to Ms. Mellerke. In 1992, Ms. Mellerke
 - 6 -

became concerned that Wynne might carry out some threats she had

made against petitioner’s life. Ms. Mellerke’s concerns

ultimately came to the attention of the local police. At the

time of trial in this case, Wynne (now known as Wynne Superson)

was incarcerated in the Metropolitan Correctional Center in

Chicago, Illinois, awaiting sentencing after having been

convicted of a violation of 18 U.S.C. section 1958 (1994), use of

interstate commerce facilities in the commission of murder-for-

hire. The intended victim of her scheme was petitioner.

The notice of deficiency in this case was issued on May 3,

1994, and on July 28, 1994, petitioner timely filed a petition.

In September of 1995, petitioner filed an amended petition,

asserting for the first time that the period of limitations for

assessment of the taxes and addition to tax at issue had expired.

In supporting documents he maintained that he had not signed,

authorized, or ratified the consent to extend the period of

limitations relating to his 1980 taxable year.

Respondent’s counsel subsequently conducted a deposition of

Wynne with respect to the issues in this case, but she refused to

answer any questions, citing her privilege against self-

incrimination.
 - 7 -

OPINION

I. The Period of Limitations for 1980

Section 6501(a) provides (with certain exceptions) that

respondent shall assess deficiencies in income taxes within 3

years after the return is filed. Section 6501(c)(4) provides an

exception to this 3-year provision by allowing a taxpayer and

respondent to agree in writing to extend the period for

assessment, if such agreement is made before expiration of the 3-

year period.

Under the Court’s Rules, the defense of expiration of the

period of limitations is an affirmative defense, and the party

raising it must specifically plead it and carry the burden of

proving its applicability. See Rules 39, 142(a). As further

explained in Adler v. Commissioner, 85 T.C. 535, 540 (1985):

Where the party pleading such issue makes a showing
that the statutory notice was issued beyond the
normally applicable statute of limitations, however,
such party has established a prima facie case. At that
point, the burden of going forward with the evidence
shifts to the other side, and the other party has the
burden of introducing evidence to show that the bar of
the statute is not applicable. Where the other party
makes such a showing, the burden of going forward with
the evidence then shifts back to the party pleading the
statute, to show that the alleged exception is invalid
or otherwise not applicable. The burden of proof,
i.e., the burden of ultimate persuasion, however, never
shifts from the party who pleads the bar of the statute
of limitations. [Citations omitted.]

In this case, it is undisputed that the normally applicable

period of limitations for assessing and collecting the tax
 - 8 -

expired on April 15, 1984, 3 years after petitioner filed his

1980 return, unless the period was extended by agreement. There

is also no disagreement that respondent issued the statutory

notice on May 3, 1994, more than 10 years after April 15, 1984.

Petitioner thus has made a prima facie showing that the notice is

untimely. That demonstration placed upon respondent the burden

of producing evidence that the bar effected by expiration of the

period of limitations is inapplicable. Respondent has made such

a showing by providing a facially valid Form 872-A, indicating

that both petitioner and Wynne agreed to waive the period of

limitations applicable to their 1980 taxable year. Production of

the Form 872-A placed upon petitioner the burden of showing that

the agreement exemplified in the Form 872-A is inapplicable.

Petitioner has undertaken to show that the agreement to

extend the period of limitations is invalid because he never

signed, authorized, or ratified the Form 872-A in issue. His

signature on that form, he asserts, was forged.

Section 6064 provides that “The fact that an individual’s

name is signed to a * * * document shall be prima facie evidence

for all purposes that the * * * document was actually signed by

him.”

To overcome the presumption that he signed his name to the

consent, petitioner has offered the expert report of Diane Marsh,

a forensic document examiner. Ms. Marsh has been certified by
 - 9 -

the Independent Association of Questioned Document Examiners, the

World Association of Document Examiners, and the American Board

of Forensic Examiners. Her report identified 20 sample

signatures of petitioner, with respect to which she compared the

signature on the consent. The report indicated that “All

standard testing procedures were used in this examination”. Her

report came to the following conclusion:

After an examination of all the documents submitted, it
is my opinion that Dr. Malachinski did not write the
name “L.S. Malachinski” on the document at issue, the
IRS Consent Form dated June 1, 1983. In addition, it
is my opinion that the same individual wrote both dates
of “6/1/83.”

Ms. Marsh’s report did not provide the facts which formed

the basis for her conclusion that petitioner had not signed the

consent. Nor did the report set forth Ms. Marsh’s reasons for

that conclusion. At trial, petitioner attempted to elicit from

Ms. Marsh the factual basis for her conclusion. Respondent

objected to this attempt.

Rule 143(f)(1) in pertinent part states:

(f) Expert Witness Reports: (1) Unless otherwise
permitted by the Court upon timely request, any party
who calls an expert witness shall cause that witness to
prepare a written report for submission to the Court
and to the opposing party. The report * * * shall
state the witness’ opinion and the facts or data on
which that opinion is based. The report shall set
forth in detail the reasons for the conclusion, and it
will be marked as an exhibit, identified by the
witness, and received in evidence as the direct
testimony of the expert witness, * * * An expert
witness’ testimony will be excluded altogether for
 - 10 -

failure to comply with the provisions of this
paragraph, unless the failure is shown to be due to
good cause and unless the failure does not unduly
prejudice the opposing party, such as by significantly
impairing the opposing party’s ability to cross-examine
the expert witness * * *.

Petitioner has not shown that the failure of Ms. Marsh’s

report to include the facts, data, and analysis that underlie her

opinion is due to good cause. Moreover, we believe that

permitting direct testimony in addition to that submitted in the

report would have unduly prejudiced respondent’s ability to

cross-examine Ms. Marsh. We accordingly sustain respondent’s

objection. Petitioner’s expert’s direct testimony is restricted

to the material contained in the expert report.

In rebuttal to Ms. Marsh’s report, respondent presented the

report and testimony of James M. Davidson, an employee of the IRS

who is also a certified document examiner. Mr. Davidson works at

respondent’s National Forensic Laboratory in Chicago. He is a

member of the American Society of Questioned Document Examiners

and has been certified by the American Board of Forensic Document

Examiners. Mr. Davidson compared the signature on the consent to

26 known exemplars of petitioner’s signature. Mr. Davidson

determined that the exemplars fell into three groups: 13 were

quickly written abbreviated last names; 10 were formally written

with distinct letter definition, and three were shortened,

quickly written signatures. Mr. Davidson found exemplars in the
 - 11 -

first two categories to be of minimal value in making the

comparison. He determined that the “L.S. Malachinski” signature

on the consent document was most similar to the last of these

three categories. He concluded, however, that he could not

determine whether the signature on the consent was genuine. His

inability to do so was based upon his determination that the

three signatures in the third category were “not enough of a

representative sample of the writer for me to make any

determinations.”

The testimony of expert witnesses may be helpful to the

Court in determining factual controversies. We are not bound by

an expert’s opinion, however, and we may accept or reject such

testimony when, in our best judgment, based on the record, it is

appropriate to do so. Thus, while we may choose to accept an

expert’s opinion in its entirety, we may also be selective in the

use of any portion of that opinion. See Seagate Tech., Inc. v.

Commissioner, 102 T.C. 149, 186 (1994).

The reports of the experts in this case are inconsistent--

Ms. Marsh believes that the exemplars suffice to show that

petitioner did not execute the questioned signature, and Mr.

Davidson believes that the exemplars do not permit such a

conclusion. Taking both opinions into account, and having

scrutinized the documents ourselves, we are not convinced that

the signature at issue is a forgery. Thus, petitioner has failed
 - 12 -

to overcome the statutory presumption that he signed the

consent.3

Circumstantial evidence reinforces our finding that

petitioner executed the consent. Petitioner first asserted in

1995, some 12 years after it was signed, that his signature on

the consent was forged. During that 12-year period, he hired

four sets of professional advisers to deal with the IRS’s

examination of his income tax liabilities. We do not believe

that, during the 12 years that followed the explicit waiver of

the period of limitations, none of petitioner’s professional

advisers consulted with him concerning the validity of that

waiver. We believe, rather, that they did so, and that they

learned from petitioner that he had signed the consent. Had

petitioner told them otherwise, they would have sought to

terminate respondent’s proceedings against petitioner for 1980

3
The Court permitted petitioner to proffer additional
testimony of Ms. Marsh as to the facts and reasons for her
conclusion. In the proffer, she asserted specific concerns about
the signature appearing on the consent. Specifically, she noted
characteristics of the loop on the “L” of petitioner’s first
name, the angle of the bottom of the “S” in petitioner’s middle
initial, and the absence of a loop at the end of the “short”
version of petitioner’s signature. These concerns, even if
properly presented, would not have changed our conclusion. The
Court’s own examination of the exemplars indicates that the
presence or absence of the questioned characteristics was not
confined to the signature on the consent. The Court's
examination of the evidence reinforces its decision to accept the
conclusion of respondent’s expert--that is, that the evidence of
record does not permit a finding that petitioner did not sign the
consent.
 - 13 -

immediately. That did not happen. The conduct of petitioner and

his advisers is thus plainly inconsistent with the claim that the

consent was forged. See Kim v. Commissioner, T.C. Memo. 1996-

142; Eddins v. United States, 71 AFTR 2d 93-795, 93-1 USTC par.

50,027 (S.D. Miss. 1992), affd. without published opinion 9 F.3d

103 (5th Cir. 1993).

Other circumstances support our finding. Typewritten

portions of the power of attorney to Messrs. Ostrand and Mack

indicate that petitioner and Wynne had contacted them on or

before May 23, 1983. The consent was executed on June 1, 1983,

and 10 days later petitioner and Wynne both signed the power of

attorney. We think it unlikely that Wynne would forge

petitioner’s signature to a document extending the statute of

limitations for 1980, and then, 10 days later, cooperate with him

in hiring advisers to represent them for that very year. In such

circumstances, her duplicity would have been too easily

uncovered.

Additionally, in April of 1984, petitioner, at the urging of

his advisers, paid $20,400 to the IRS with respect to his and

Wynne’s 1980 taxable year. Petitioner made this payment after

the period of limitations for that year would have expired,

unless there were in effect a valid waiver. Competent

professionals would not advise a client to make a payment with

respect to a tax liability which could not be collected.
 - 14 -

Plainly, payment of the $20,400 indicates that petitioner’s

advisers understood that he and Wynne had validly consented to an

extension of that period.

Petitioner’s advisers conducted additional discussions with

the IRS in the latter part of 1984, but in July of 1985, the IRS

sent petitioner and his adviser a letter advising petitioner of a

proposed liability of more than $90,000 for his and Wynne’s

taxable year 1980. Again, the advisers made no suggestion that

the collection of the taxes at issue was time-barred. The last

professional adviser hired, in December 1988, was Mr. Boylan, who

ultimately represented petitioner before this Court. Almost 7

years after Mr. Boylan was hired, the question of the validity of

the consent first arose.

In light of all the foregoing, we do not accept petitioner’s

assertion that his signature to the consent was forged.

Petitioner urges strenuously that Wynne possessed enough

animosity toward him to forge documents provided to the IRS. He

points to the startling evidence that Wynne has been convicted of

trying to have him murdered. Evidence of Wynne’s plotting,

however, came to light only in 1989, following a bitter custody

battle. Thus, although the evidence is dramatic, it is not

particularly persuasive as to Wynne’s intentions or state of mind

more than 6 years earlier, when the consent was executed. We

conclude that Wynne’s animosity in 1989 is too attenuated and too
 - 15 -

remote in time to support a finding that she forged petitioner’s

name to the consent document. Petitioner’s arguments

notwithstanding, the notice of deficiency for his and Wynne’s

1980 Federal income taxes is valid and timely.

We would reach this conclusion even if we considered some

additional testimony which, petitioner asserts, supports his

contention that Wynne forged his signature. Petitioner states

that Wynne made some statements late in 1989 or afterwards to her

friend and employee Ms. Mellerke and proffers Ms. Mellerke’s

statements about those statements. Those statements were that

Wynne “had contacted the IRS and had reported Dr. Malachinski for

several things that he had not done, and also she provided a

document to the IRS shortly before they were divorced that he was

not aware of”. This document, Wynne is said to have stated, was

so damaging to petitioner that “he would be feeling the effects

of it for the rest of his life”.

Respondent objects to the introduction of such testimony,

asserting that such testimony would be inadmissible hearsay. We

need not address this objection, however, because the proffered

testimony, even if admitted, is too vague and inconclusive to be

of evidentiary value in determining whether petitioner’s

signature on the consent was forged. Wynne’s assertion that she

“provided a document to the IRS shortly before they were

divorced” fails to identify this document as the consent Form
 - 16 -

872-A. Nor do the proffered statements indicate that Wynne or

anyone else forged petitioner’s name to that document, or even

that Wynne herself signed it.

II. The Payment of $20,400 in 1984

In April of 1984, acting on professional advice, petitioner

sent to the IRS a remittance of $20,400 with respect to his and

Wynne’s anticipated joint Federal income tax liability for 1980.

Four years later, in April of 1988, the IRS transferred the

$20,400 to petitioner’s individual 1982 Federal income tax

account. The IRS transcripts of account indicate that about 6

months thereafter, in October of 1988, the $20,400, plus $902 in

interest, was refunded. This entry in the IRS records was made

6 years prior to respondent’s issuance of the notice of

deficiency asserting that petitioner was liable for 1980 taxes of

$43,750.

Petitioner argues that he did not request either the

crediting of the $20,400 to his 1982 taxable year or the refund

of that amount. He denies that he ever received the refund;

instead, he speculates, Wynne intercepted the check and forged

it. He concludes that, even if he does not prevail upon the

statute of limitations argument, he is entitled to credit for the

$20,400 against the deficiency he has agreed is owing for 1980 in

the absence of a statute of limitations defense.
 - 17 -

This Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress. See Savage v. Commissioner, 112 T.C. 46, 48 (1999);

Pen Coal Corp. v. Commissioner, 107 T.C. 249, 254 (1996); Kluger

v. Commissioner, 83 T.C. 309, 314 (1984). Our authorization

encompasses the determination of deficiencies pursuant to section

6214(a) and of overpayments, subject to specific limitations,

under section 6512(b). Obviously, the provisions of section

6512(b) are not applicable because petitioner herein has conceded

liability for the deficiency; he is not claiming any overpayment.

Accordingly, to demonstrate that this Court has jurisdiction,

petitioner must place this $20,400 remittance within the scope of

a deficiency.

Section 6211(a) defines the term “deficiency”. A deficiency

is the amount by which the tax imposed exceeds the excess of--

(1) the sum of

(A) the amount shown as the tax by the
taxpayer upon his return, if a return was made by
the taxpayer and an amount was shown as the tax by
the taxpayer thereon, plus

(B) the amounts previously assessed (or
collected without assessment) as a deficiency,
over--

(2) the amount of rebates, as defined in
subsection (b)(2), made. [Sec. 6211(a).]

Here, the $20,400 remitted by petitioner in 1984 was not

“shown as the tax” on the Federal income tax return he filed for
 - 18 -

1980. It has not been previously assessed, or collected without

assessment, “as a deficiency” for 1980, because at the time it

was remitted, respondent had not made a determination of

petitioner’s tax liability. See Conforte v. Commissioner, 74

T.C. 1160, 1204-1205 (l980), affd. in part, revd. in part and

remanded 692 F.2d 587 (9th Cir. 1982). In fact, no deficiency

for 1980 was even proposed until 1994, 10 years after the

remittance was made. See Greene v. Commissioner, T.C. Memo.

1965-312. Nor can it be a “rebate”, which likewise requires that

respondent have made a “substantive recalculation” of the tax

owed. O’Bryant v. United States, 49 F.3d 340, 342 (7th Cir.

1995); see also Lesinski v. Commissioner, T.C. Memo. 1997-234.

Instead, under settled principles, the $20,400 was merely a

deposit, made well before any deficiency was proposed or

determined.

A taxpayer’s remittance will generally 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. See Risman v. Commissioner, 100 T.C. 191, 197 (1993)

(citing Rosenman v. United States, 323 U.S. 658, 661-662 (1945));

Ewing v. United States, 914 F.2d 499, 503-504 (4th Cir. 1990);

Fortugno v. Commissioner, 353 F.2d 429, 435 (3d Cir. 1965), affg.

41 T.C. 316 (1963). “Until such time and absent such intent, a

remittance by a taxpayer to respondent generally will be
 - 19 -

regarded, not as a payment of tax, but merely as a deposit in the

nature of a cash bond with respect to a tax liability that is to

be determined at a later point in time.” Risman v. Commissioner,

supra at 197. Taxpayers make remittances “in the nature of a

cash bond” in order to halt the accrual of interest liabilities

on tax liabilities before they are assessed. See Rosenman v.

United States, supra. The IRS specifically approves this

procedure and accepts such deposits. See Rev. Proc. 82-51, 1982-

2 C.B. 839, superseded by Rev. Proc. 84-58, 1984-2 C.B. 501. The

procedures adopted by the IRS are “generally consistent” with

court decisions addressing the topic of payment versus deposit.

See Saltzman, IRS Practice & Procedure, par. 11.05[1][b], at 11-

34 (2d ed. 1991).

Thus a taxpayer who makes a remittance before a tax

liability has been ascertained is generally presumed to have

intended to make a deposit. See Plankinton v. United States, 267

F.2d 278, 280 (7th Cir. 1959); Risman v. Commissioner, supra at

198-199. As the IRS explains in Rev. Proc. 82-51, 1982-2 C.B. at

840, at section 3.03(4)(1):

(1) Any undesignated remittance not described in
section 3.03 [i.e., payments made in response to a
proposed liability] made before the written proposal of
a liability, for example, 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.
* * *
 - 20 -

There is no evidence that, at the time the remittance was

made, respondent had issued a “revenue agent’s or examiner’s

report” or any other written proposal of a liability for 1980.

Petitioner made the $20,400 remittance in April of 1984, some 16

months before respondent’s agent made the preliminary indication

of a $91,086 deficiency in the examination report dated July 24,

1985, and some 10 years before respondent determined the

deficiency to be $43,750. Moreover, petitioner’s remittance of

$20,400 bore no perceptible relationship to either of these

amounts. Petitioner himself could shed no further light on the

nature of the remittance, indicating only that he may have made

it to stop the running of interest. These factors are

characteristic of a deposit in the nature of a cash bond; they

are inconsistent with a finding that the remittance was actually

a payment or was meant to be one. See Ewing v. United States,

supra at 503.4 We therefore conclude that the $20,400 was not,

and was not intended to be, “an amount collected * * * as a

deficiency” as to which we have jurisdiction under section

6211(a)(1)(B).

4
We have taken into consideration the IRS payment posting
voucher which contains a checked section indicating that the
payment was a Code 640 “Advance payment on deficiency”. The same
voucher, however, bears the handwritten legend in the “remarks”
section that the $20,400 serves as a “cash bond”. The voucher
thus supports either the payment or deposit interpretation, and
accordingly it is not persuasive as to either. Cf. Ewing v.
United States, 914 F.2d 499, 503 n.10 (4th Cir. 1990).
 - 21 -

Because we conclude that the $20,400 remittance was a

deposit with respect to the 1980 tax year, it has no effect upon

the deficiency ultimately determined for petitioner in that year.

We accordingly lack jurisdiction over that amount for 1980, the

only taxable year before us in this proceeding. See Savage v.

Commissioner, 112 T.C. 46 (1999).5

It follows that we need not address petitioner’s proffer of

additional evidence concerning the $20,400 remittance, or its

return with interest. Petitioner again seeks to introduce the

testimony of Ms. Mellerke. This time petitioner seeks to show

that Wynne had stated “that she’d received a refund check that

was intended for someone else, and she had signed the check and

cashed it”. Respondent objected to this testimony, asserting

both that it is inadmissible hearsay and that it is irrelevant.

Once again, we do not rule upon the hearsay objection, because we

conclude that evidence that Wynne had taken the returned

remittance for herself is not relevant here, where we have no

jurisdiction to address issues relating to that remittance.

5
This $20,400 was refunded only after being credited to
petitioner’s 1982 tax account. When refunded, it included $902
as interest--apparently reflecting the accrual of interest for
the 6 months that it had been credited to petitioner’s 1982 tax
liabilities. There is no evidence why respondent returned the
$20,400; it may have been agreed to by petitioner’s duly
authorized representatives, or it may have been issued as the
result of a mistake by the IRS. In any event, we lack
jurisdiction over that amount, because petitioner’s 1982 tax year
is not before us in this proceeding.
 - 22 -

In view of the foregoing,

Decision will be entered

for respondent.