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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 taxable
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