Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 50

                                               - 50 -                                                  
                  The Courts of Appeals have lined up on both sides.  In Boyle                         
            v. United States, 355 F.2d 233 (3d Cir. 1965), revg. and                                   
            remanding 232 F. Supp. 543 (D.N.J. 1964), after the decedent died                          
            leaving shares of preferred stock, dividend arrearages were added                          
            to their value, and estate tax was paid accordingly.  The                                  
            distributees, on receiving those dividends, listed them as                                 
            nontaxable for income tax purposes, and the Commissioner                                   
            determined income tax deficiencies.  The distributees paid the                             
            income tax deficiencies and brought a refund suit.  The District                           
            Court denied them equitable recoupment against the then time-                              
            barred estate tax, holding that the single-transaction test of                             
            Rothensies v. Electric Storage Battery Co. was not satisfied.                              
            Boyle v. United States, 232 F. Supp. at 549-550.  The Court of                             
            Appeals reversed, Boyle v. United States, 355 F.2d at 236,                                 
            holding that there had been double taxation of a single item, the                          
            same fund, which sufficed to satisfy the requirements of Bull v.                           
            United States, and that treatment of the same fund as both corpus                          
            and income provided the necessary inconsistency of treatment.                              
            Id. at 235.  The Court of Appeals distinguished Rothensies v.                              
            Electric Storage Battery Co. on the ground that the lapse of so                            
            much time there made it more distant from the case before the                              

                  14(...continued)                                                                     
            Day Equitable Recoupment and the “Two-Tax Effect”:  Avoidance of                           
            the Statutes of Limitation in Federal Tax Controversies, 28 Ariz.                          
            L. Rev. 595, 630-650 (1986); Willis, Some Limits of Equitable                              
            Recoupment, Tax Mitigation, and Res Judicata: Reflections                                  
            Prompted by Chertkof v. United States, 38 Tax Law. 625, 642-645                            
            (1985).                                                                                    



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