- 49 -
Rul. 71-56 had not yet been issued. In Ford, as in Wilmington
Trust, but not as in Herring, Bowcut, or the case at hand, it was
the Government's claim to equitable recoupment that was denied.
When the Court of Claims later decided Wilmington Trust, it
was already committed to its prematurely expressed and ill-
considered view in the Ford case. I agree with petitioner that
Herring and Bowcut reflect the preferable view. To deny that
there is a single transaction for equitable recoupment purposes
in the Herring-Bowcut situation wouldn't serve the purposes of
statutes of limitation. Requiring only that the connection
between the two taxable events be causally automatic (as in
Herring-Bowcut and in our case) serves to avoid the kind of
staleness that the Supreme Court feared in Rothensies v. Electric
Storage Battery Co., supra. This requirement of at least
automatic causality also helps to ensure that the Commissioner
and the taxpayer aren't obliged to perform extensive additional
investigation and recordkeeping; the concept of final repose
isn't overwhelmingly important where the claim of one party may
only be inchoate or not even exist until there has been a
determination on the open claim, at which time the former claim
may already be barred. To rely on the need for final repose as
barring equitable recoupment in this situation would make a
mockery of the concept of repose.14
14Academic commentators have almost invariably supported
Herring-Bowcut against the Court of Claims. See Andrews, Modern-
(continued...)
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