Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 46

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            determining the taxable estate.  In Herring, the Court of Appeals                          
            found that, although the case might differ from Bull, in                                   
            practical effect both of the Government’s claims grew out of the                           
            same transaction and were asserted against the same assets in the                          
            hands of the executor.  United States v. Herring, 240 F.2d at                              
            228.  The court in Herring distinguished Rothensies v. Electric                            
            Storage Battery Co., supra, on the ground that the two sets of                             
            transactions there had been so very remote from each other that                            
            the claims for which recoupment was sought were long dead.  Id.                            
            at 227.  In Bowcut, the District Court reached the same result on                          
            the basis of Herring.  Bowcut v. United States, 175 F. Supp. 218,                          
            221-222 (D. Mont. 1959), affd. 207 F.2d 654 (9th Cir. 1961).  The                          
            Court of Appeals did not consider the single-transaction issue,                            
            as the Government appealed primarily on other grounds, lack of                             
            clean hands and laches, which the Court of Appeals rejected as                             
            grounds for denying equitable recoupment, United States v.                                 
            Bowcut, 287 F.2d at 656-657 & n.1.  The Commissioner acceded to                            
            these decisions in Rev. Rul. 71-56, 1971-1 C.B. 404,13 which like                          
            them concerns the application of a barred overpayment of Federal                           
            estate tax against outstanding assessments of income tax owed by                           
            a decedent for years preceding death and provides for                                      
            administrative allowance of equitable recoupment in that                                   
            situation.                                                                                 



                  13Revoking Rev. Rul. 55-226, 1955-1 C.B. 469.                                        



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