Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 23

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            prevent unjust enrichment of either the taxpayer or the                                    
            Government.  Stone v. White, 301 U.S. 532, 537-539 (1937); Bull                            
            v. United States, supra at 260-261.  While admittedly no case has                          
            squarely considered the issue presented by the instant case,                               
            recoupment has always been applied on an item-by-item or                                   
            transaction-by-transaction basis, and the circumstances                                    
            surrounding unrelated items or transactions have not been deemed                           
            relevant to the application of the doctrine.  Rothensies v.                                
            Electric Storage Battery Co., 329 U.S. 296, 299 (1946)                                     
            (recoupment "has never been thought to allow one transaction to                            
            be offset against another, but only to permit a transaction which                          
            is made the subject of suit by a plaintiff to be examined in all                           
            its aspects, and judgment to be rendered that does justice in                              
            view of the one transaction as a whole" (emphasis supplied)).                              
            Consequently, I believe the majority's limitation on the                                   
            application of the doctrine is inconsistent with its nature and                            
            the policy underlying it.  As there is no issue as to the                                  
            entitlement to the credit, the "main action" in the instant case                           
            is not the entire liability of the estate for tax, but rather the                          
            additional estate tax claimed with respect to the shares.                                  
                  I believe that the majority overstates its case regarding                            
            the defensive use of equitable recoupment, in that the cases                               
            relied on by the majority do not go as far as the majority would                           
            have them go.  The rejection of equitable recoupment as an                                 
            offensive weapon by the Supreme Court in United States v. Dalm,                            




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