Estate of Fortugno v. Commissioner

Estate of Daniel Fortugno, Deceased, Connie M. Fortugno, Executrix v. Commissioner. Estate of Daniel P. Fortugno, Deceased, Connie M. Fortugno, Executrix, and Connie M. Fortugno, Surviving Spouse v. Commissioner. Estate of Fortugno v. Commissioner Docket Nos. 69030, 69031. United States Tax Court T.C. Memo 1965-124; 1965 Tax Ct. Memo LEXIS 207; 24 T.C.M. (CCH) 646; T.C.M. (RIA) 65124; May 10, 1965 John J. Gibbons, for the petitioners. Francis X. Gallagher and Scott A. Dahlquist, for the respondent. FAY Memorandum Opinion FAY, Judge: The respondent determined that petitioners were liable for deficiencies in income tax and additions to tax under sections 291(a), 293(b), and 294(d)(2) of the Internal Revenue Code of 1939 and corresponding prior statutes, for various years extending from 1934 to 1950. The parties have disposed of all issues regarding the deficiencies and are in agreement that the petitioners have remitted an amount in excess of their tax liabilities. The only issue remaining for decision is when did the petitioners' remittances constitute an overpayment. All of the facts have been stipulated. The petitioners agree*208 that if they had been joined in the consolidated trial in the case of Alfred Fortugno, 41 T.C. 316 (1963), the Findings of Fact made by this Court therein would have been the same. Accordingly, we incorporate in these proceedings as our Findings of Fact the Findings of Fact in Alfred Fortugno, supra. Having done so, we hold, on the authority of Alfred Fortugno, supra, that petitioners' remittances here did not constitute a payment of tax until such time as the petitioners agree to, or acquiesce in, the asserted tax deficiencies. Decisions will be entered under Rule 50.