- 18 - CHABOT, J., concurring: I join in the majority opinion and the interpretation that the “claim” in the instant case, against which equitable recoupment is sought to lie, is respondent’s claim that there is a deficiency in estate tax. The dissenters maintain that the claim against which equitable recoupment is sought to lie is only respondent’s claim that, because of the revaluation of the Mueller Co. stock, the estate tax liability is greater than it otherwise would be. Judge Beghe’s dissenting opinion, infra pp. 77-81, relies on Hemmings v. Commissioner, 104 T.C. 221 (1995), for the proposition “that the credit for previously paid taxes is not part of the same claim or cause of action as that attributable to the date of death value of the shares.” Dissenting op. p. 79 (Beghe, J.). However, as explained in Hemmings v. Commissioner, 104 T.C. at 233-235, it appears that the only situation where the issues of the unclaimed credit and the stock value could be litigated in separate actions would be where the taxpayer first proceeds in a refund forum on one of the issues and the Commissioner then raises the other issue in a later notice of deficiency. Also, with exceptions not relevant in the instant case, in deficiency proceedings in the Tax Court, the different issues are merged into a single cause of action and neither side is permitted to bring a separate suit “in any court” once a decision on liability for “estate tax in respect of the taxablePage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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