Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 20

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                  WELLS, J., dissenting:  I respectfully disagree with the                             
            majority's overly restrictive view of the applicability of the                             
            doctrine of equitable recoupment.  I agree with Judge Beghe that                           
            all of the conditions for application of the doctrine have been                            
            met.  I, however, want to focus my disagreement on what I believe                          
            is the majority's mistaken notion that the application of the                              
            doctrine of equitable recoupment in the instant case is offensive                          
            rather than defensive simply because the amount of an unrelated                            
            overpayment of tax resulting from the estate's failure to claim a                          
            credit for tax on prior transfers exceeds the amount of                                    
            additional estate tax due by reason of the increased valuation of                          
            the shares in issue.                                                                       
                  I believe that, once an equitable recoupment claim is                                
            properly raised by a taxpayer in defense of an asserted                                    
            deficiency, the mere fact that the Commissioner's partial victory                          
            fails to produce a deficiency should not prevent the Court from                            
            allowing the equitable recoupment claim.  If respondent had been                           
            totally sustained on the deficiency, or even if the increase in                            
            the valuation of the shares of stock in issue had been great                               
            enough to create an overall deficiency in estate tax, I think the                          
            majority would concede (assuming that they would agree that the                            
            other requirements are met) that the recoupment claimed would be                           
            allowed.  The application of the doctrine should be governed                               
            solely by matters relating to the shares, and not upon the                                 
            fortuity of unrelated circumstances, i.e. the convergence of (1)                           




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