Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 8

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                  the party asserting equitable recoupment may not                                     
                  affirmatively collect the time-barred underpayment or                                
                  overpayment of tax.  Equitable recoupment "operates                                  
                  only to reduce a taxpayer's timely claim for a refund                                
                  or to reduce the government's timely claim of                                        
                  deficiency".  O'Brien v. United States, 766 F.2d 1038,                               
                  1049 (7th Cir. 1985).  [Estate of Mueller v.                                         
                  Commissioner, 101 T.C. at 552.]                                                      

            The opinion in O'Brien v. United States, 766 F.2d 1038, 1049 (7th                          
            Cir. 1985), also supports respondent's position that equitable                             
            recoupment may be used only as a defense against the additional                            
            tax that would otherwise be due:                                                           

                  Recoupment * * * will permit a taxpayer to recoup an                                 
                  erroneously paid tax, the refund of which is time-                                   
                  barred, against a timely and correctly asserted                                      
                  deficiency by the government.  The doctrine thus                                     
                  operates only to reduce * * * the government's timely                                
                  claim of deficiency; it does not allow the collection                                
                  of the barred tax itself.  In summary, the doctrine                                  
                  requires some validly asserted deficiency or refund                                  
                  against which the asserting party desires to recoup a                                
                  time-barred refund or deficiency.                                                    
                             *     *     *     *     *     *     *                                     
                        Attempts by taxpayers to utilize the doctrine to                               
                  revive an untimely affirmative refund claim, as opposed                              
                  to offset a timely government claim of deficiency with                               
                  a barred claim of the taxpayer, have been uniformly                                  
                  rejected.  * * *  [Id. at 1049; citation omitted.]                                   

            Likewise, in Brigham v. United States, 200 Ct. Cl. 68, 80-81, 470                          
            F.2d 571, 577 (1972), the court explained the function of                                  
            equitable recoupment as follows:                                                           

                  When its benefits are sought by the taxpayer, the                                    
                  function of the doctrine is to allow the taxpayer to                                 




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