- 39 -
as the overpayment or deficiency before the Court; (3) that such
transaction, item, or taxable event have been inconsistently
subjected to two taxes; and (4) that there be sufficient identity
of interest between the person or persons subject to the two
taxes.11 Although recoupment may further require (5) that the
situation not be one to which the mitigation provisions, sections
1311 through 1314, apply, respondent has waived that argument in
this case. I then consider (6) any additional equitable factors
and, finally, (7) the effect of the presence of the estate tax
overpayment, the issue on which the majority have chosen to
dispose of this case.
1. Refund Time-Barred
Not until September 10, 1990, did the Administration Trust
file the claim for refund of its April 15, 1987, payment of
income tax that is now at issue. That claim would appear to be
barred by section 6511(a), which requires that such a claim be
made within 3 years from the time the return was filed, and the
return was filed on the same date that the payment was made,
April 15, 1987.12
11United States v. Dalm, 494 U.S. 596, 608 (1990), makes
clear the further requirement, not in issue in this case, that
there be a basis for jurisdiction in the case independent of
equitable recoupment. In this case, the statutory notice and
petition are clearly valid and were timely filed, and
consequently we have independent jurisdiction over the deficiency
originally determined by respondent (and the overpayment that we
must now determine).
12Because the expiration of this 3-year period occurred
(continued...)
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