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NEW YORK LIFE INS. CO. v. U.S.

No. 96-5052.

118 F.3d 1553 (1997)

NEW YORK LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

Rehearing Denied; Suggestion for Rehearing In Banc Declined September 26, 1997.

Attorney(s) appearing for the Case

Arthur L. Bailey, Steptoe & Johnson, Washington, DC, argued, for plaintiff-appellee. With him on the brief was J. Walker Johnson. Of counsel on the brief were Gerald Kaplan and Michael Oleske, New York Life Insurance Company, New York City.

Gilbert S. Rothenberg, Tax Division, Department of Justice, Washington, DC, argued, for defendant-appellant. With him on the brief were Loretta C. Argrett, Assistant Attorney General, Gary R. Allen, Chief, Appellate Section, and Bridget M. Rowan.

Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

Opinion for the court filed by Senior Circuit Judge FRIEDMAN. Dissenting Opinion filed by Circuit Judge RADER.

FRIEDMAN, Senior Circuit Judge.

The question on the merits is whether money remitted to the Internal Revenue Service (the Service) constituted a "deposit" or a "payment" of taxes. If a deposit, the taxpayer is entitled to recover it; if a payment, the taxpayer can recover the money only after it files a claim with the Service for the return of an...

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