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supra, does not require the result reached by the majority. If
petitioner had paid the full deficiency determined by respondent
and sued for a refund, the reach of Dalm would not have precluded
the right of petitioner to obtain a refund of the income tax
attributable to the sale of the shares even if the refund forum
court had reduced the estate tax valuation of the shares as we
have done in the instant case. The only limitation imposed by
Dalm would have been to preclude petitioner from increasing the
amount of its claimed refund by any amount attributable to the
claimed overpayment of income tax. Similarly, Bull v. United
States, supra, does not require the result the majority reaches
because that case did not involve an unrelated claim for refund,
and therefore the majority's hypothetical construction of the
Government's claim were it to sue for the deficiency determined
mistakenly emphasizes the taxpayer's overall liability as the
determinative factor in deciding whether to apply the doctrine.
Accordingly, I would hold that, to the extent that
petitioner's recoupment claim does not exceed the amount of the
additional tax sought by respondent with respect to the shares of
stock, the use of the doctrine is purely defensive and does not
enable petitioner to affirmatively recover on a time-barred
claim. I therefore respectfully dissent.
COLVIN, BEGHE, and GALE, JJ., agree with this dissent.
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