Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 47

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                  Despite the statement of administrative position in Rev.                             
            Rul. 71-56, supra, respondent has chosen, in the case at hand, to                          
            hang her hat on contrary decisions of the old Court of Claims.                             
            In Wilmington Trust Co. v. United States, 221 Ct. Cl. 686, 610                             
            F.2d 703 (1979), in two consolidated cases, the Commissioner                               
            assessed income tax deficiencies against the taxpayers after                               
            their deaths, and the executors deducted the income taxes paid as                          
            claims against the decedents’ gross estates.  In the subsequent                            
            refund suits to recover the income tax payments, the Commissioner                          
            sought, through equitable recoupment of the time-barred estate                             
            tax deficiencies, to reduce the refunds.  In both cases, the                               
            trial judges, citing Herring v. United States, supra, Bowcut v.                            
            United States, supra, and Rev. Rul. 71-56, found that the single-                          
            transaction requirement had been satisfied, and recommended                                
            decision for the Government.  Wilmington Trust Co. v. United                               
            States, 43 AFTR 2d 79-801, 79-1 USTC par. 9223 (Ct. Cl. Trial                              
            Div. 1979); McMullan v. United States, 42 AFTR 2d 78-5723, 78-2                            
            USTC par. 9656 (Ct. Cl. Trial Div. 1978).  The Court of Claims                             
            reversed and remanded both cases, stating that it was obliged by                           
            Rothensies v. Electric Storage Battery Co., 329 U.S. 296 (1946),                           
            to give the single-transaction requirement a narrow, inflexible                            
            interpretation.  Wilmington Trust Co. v. United States, 610 F.2d                           
            at 713.  In these consolidated cases, unlike Herring and Bowcut--                          
            and unlike the case at hand--it was the Government that was                                
            seeking equitable recoupment.                                                              




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