- 40 -
Petitioner has suggested, although not on brief, that the
Administration Trust’s refund claim was a timely amendment of the
timely filed amended return of November 16, 1987. Petitioner
refused respondent’s request to admit that the second amended
return was not a timely claim for refund. Respondent has argued
that petitioner’s refusal to stipulate that the second refund
claim is barred constitutes a failure to establish an essential
element of its claim for equitable recoupment and is sufficient
ground for denying petitioner the relief it seeks. To the
contrary, I would regard it as sufficient that we can satisfy
ourselves that the claim is barred. I don't believe that
petitioner needs to concede the point for the purposes of this
proceeding.
The essential question on this point is whether the original
amended return of November 16, 1987, gave respondent sufficient
notice of the tax overpayment now sought through equitable
recoupment and sufficient information to enable respondent to
investigate the claim. United States v. Andrews, 302 U.S. 517,
524 (1938) ("a claim which demands relief upon one asserted fact
situation, and asks an investigation of the elements appropriate
to the requested relief, cannot be amended to discard that basis
and invoke action requiring examination of other matters not
12(...continued)
later than the expiration of the 2-year period after the payment
of the tax, that alternative date need not be considered. Sec.
6511(a) directs us to use the later date.
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