- 20 - 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)Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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