Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 43

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            of excise taxes paid could not be obtained for the earlier years                           
            1919 through 1921 because those years were already time-barred.                            
            The Commissioner then determined that the excise tax refund for                            
            the years 1922 through 1926 should be included in the taxpayer's                           
            gross income in 1935, the year of receipt.  The taxpayer paid                              
            under protest and brought a refund suit, arguing that the refund                           
            was not taxable income and, in the alternative, that the income                            
            tax should be reduced by equitable recoupment on account of the                            
            time-barred overpaid excise taxes for the earlier years 1919                               
            through 1921 for which it had been denied a refund.  In District                           
            Court, the taxpayer lost on the income inclusion issue, but won                            
            on the recoupment issue.  Electric Storage Battery Co. v.                                  
            Rothensies, 57 F. Supp. 731 (E.D. Pa. 1944).  The Court of                                 
            Appeals for the Third Circuit affirmed, holding that the                                   
            interpretation of “transaction” should be informed by the                                  
            "concepts of fairness" basic to the doctrine of recoupment, so                             
            that all the doctrine required was a "logical connection" between                          
            the main claim and the recoupment claim.  Electric Storage                                 
            Battery Co. v. Rothensies, 152 F.2d 521, 524 (3d Cir. 1945).  In                           
            reversing on the equitable recoupment issue, the Supreme Court                             
            rejected the Third Circuit’s reasoning.  The Supreme Court                                 
            insisted that the equitable recoupment doctrine required that a                            
            single transaction constitute both the taxable event claimed upon                          
            and the one considered in recoupment and held that the single                              






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