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these facts if we adopt the reasoning of the Third Circuit in
Boyle.” Id. at 1050 n.16.
After the O’Brien decedent had died, his estate paid estate
tax on stock in his estate at one value. Then, after the estate
sold the stock, it paid income tax using that same value as its
basis. The Commissioner then determined a higher value for
estate tax purposes, and a stipulated decision was entered in
this Court resolving the estate tax dispute using a higher value.
One of decedent’s heirs and children then sued for a refund of
overpaid income tax, on which the period of limitations had
expired, arguing that the basis used for the stock should have
been higher and using equitable recoupment as the ground for the
suit. The District Court agreed, finding that the single-
transaction requirement of Rothensies v. Electric Storage Battery
Co. had been satisfied.15 O’Brien v. United States, 582 F. Supp.
at 205-206. Like the Court of Appeals in Boyle, the District
Court in O’Brien relied on Bull, finding it closer to its case
than Rothensies v. Electric Storage Battery Co. The District
Court distinguished Rothensies v. Electric Storage Battery Co. on
the ground that in that case the Government had not taken
inconsistent positions, the dispute having been precipitated by
15The taxpayer also argued for the refund under the
statutory mitigation provisions, secs. 1311-1314, and the
District Court also bought this argument, O’Brien v. United
States, 582 F. Supp. 203, 206-207 (C.D. Ill. 1984), under
Chertkof v. United States, 676 F.2d 984 (4th Cir. 1982). The
Court of Appeals also reversed this conclusion.
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