Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 17

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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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