Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 16

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                  Use of equitable recoupment is limited to defending against                          
            a valid claim.  It allows an otherwise time-barred tax claim                               
            arising out of the same transaction to be used as a defense or                             
            credit against any additional tax ultimately found to exist in                             
            the main action.15  If all or part of the Government's claim for                           
            additional tax is sustained, equitable recoupment can be used to                           
            reduce or eliminate it.  However, once equitable recoupment of                             
            the time-barred tax overpayment completely eliminates the                                  
            additional tax liability in the main action, equitable recoupment                          
            has served its restricted defensive purpose.16  Equitable                                  
            recoupment cannot be used affirmatively to recover a tax                                   
            overpayment, the refund of which is barred by the statute of                               
            limitations.                                                                               
                  Where the Government claims that the taxpayer owes                                   
            additional tax and the court finds that there is no additional                             
            tax due to the Government, there is nothing left to defend                                 
            against.17  The additional estate tax liability that would have                            

                  15See United States v. Dalm, 494 U.S. at 605.                                        
                  16See United States v. Timber Access Indus. Co., 54 F.R.D.                           
            36 (D. Or. 1971).  The defendant was entitled to an affirmative                            
            recovery against the Government on a separate counterclaim;                                
            however, recoupment against the Government was restricted to the                           
            amount that the Government was entitled to recover in the main                             
            cause of action initiated by the Government.                                               
                  17See Evans Trust v. United States, 199 Ct. Cl. 98, 106, 462                         
            F.2d 521, 526 (1972), stating:                                                             

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