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resulted from our valuation of the stock in decedent's estate was
less than the credit that respondent correctly allowed in the
notice of deficiency. As a result, respondent has no valid claim
for additional tax. Respondent's claim for additional tax has
been totally defeated, and petitioner is entitled to a decision
that there is no deficiency and that it overpaid its estate tax.
Any use of equitable recoupment at this point would not be
defensive.
We hold that petitioner is not entitled to use equitable
recoupment affirmatively to increase the amount of an overpayment
it is entitled to recover. It follows that equitable recoupment
has no application in this case. As a result of our disposition,
we express no opinion regarding whether any of the other
requirements for equitable recoupment have been satisfied.
An appropriate order will
be issued.
Reviewed by the Court.
COHEN, CHABOT, SWIFT, JACOBS, GERBER, WRIGHT, PARR, WHALEN,
CHIECHI, FOLEY, and VASQUEZ, JJ., agree with this majority
opinion.
17(...continued)
Furthermore, since the Government's asserted deficiency
was settled by a determination that no deficiency
existed, plaintiff is attempting to use recoupment not
in its traditional form as a defense to an asserted
deficiency, but as an independent ground for reopening
years now closed by the statute of limitations.
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