Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 52

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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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