Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 24

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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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