Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 18

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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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