- 22 - been due from the estate even considering the overpayment attributable to the allowance of the credit. As it turned out, the additional estate tax attributable to the revaluation of the shares was less than the overpayment resulting from the estate's failure to claim the credit on its return, and the estate is therefore due a refund. Petitioner argues that it should be allowed to recoup against the additional estate tax attributable to the revaluation of the shares ($957,099) the amount of income tax overpaid on their sale ($265,999). The majority would allow equitable recoupment only if there were an overall deficiency in tax after taking into account all issues in the case (other than the equitable recoupment claim). I agree with Judge Beghe that the recoupment claim should be allowed so long as it did not exceed the additional tax due as a result of the increased valuation of the shares; i.e. recoupment should be applied to correct the error on a transactional basis, not just on the basis of whether some amount is finally determined to be owed to the party who received the windfall. Recoupment has been characterized as a counterclaim or defense against asserted liability relating to the same transaction, item, or event upon which the main action is grounded. Reiter v. Cooper, 507 U.S. 258, 264 (1993); United States v. Dalm, 494 U.S. 596, 605 n.5, 608 (1990); Bull v. United States, 295 U.S. 247, 262 (1935). The doctrine is designed toPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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