- 51 -
Court than Bull. Id. at 236-237. Respondent attempts to
distinguish Boyle from our case on the ground that what was at
issue in Boyle was whether the second tax should have been paid
at all on the transaction, not whether it was overpaid. However,
the Court of Appeals doesn't seem to have relied on that fact,
and I don't see the distinction as dispositive. Thus, Boyle
supports Herring-Bowcut, and petitioner’s view of the single-
transaction issue in this case.
In O’Brien v. United States, 766 F.2d 1038 (7th Cir. 1985),
revg. 582 F. Supp. 203 (C.D. Ill. 1984), the District Court held
squarely that the single-transaction requirement is satisfied
where the issue is inconsistency in establishing fair market
value of the same property for the purpose of determining the
gross estate and the basis of the property (the situation in the
case at hand), and the Court of Appeals for the Seventh Circuit
appears to have agreed. Respondent correctly points out that any
statement of the Court of Appeals to that effect was dictum, as
that Court reversed the District Court’s decision to apply
equitable recoupment, on a ground not relevant to our case (later
confirmed by Dalm), that equitable recoupment requires an
independent basis for jurisdiction. O’Brien v. United States,
766 F.2d at 1049. But the Court of Appeals did say, even if in
dictum, that the single-transaction test of Rothensies v.
Electric Storage Battery Co., supra, “appears to be satisfied on
Page: Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 NextLast modified: May 25, 2011