- 24 - 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.Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
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