- 23 - 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,Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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