Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 54

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            that the decedent had sold his interest prior to his death).  As                           
            in Herring and Bowcut, the refund suit was ostensibly for                                  
            overpaid income tax (which was not yet time-barred) but in fact                            
            was grounded on equitable recoupment of the earlier, time-barred                           
            overpaid estate tax.  Equitable recoupment was denied.                                     
            Respondent interprets this case to mean that, to satisfy the                               
            single-transaction requirement, not only must two taxes have been                          
            imposed, but they must have been imposed on a single transaction                           
            on inconsistent legal theories.  However, although both the                                
            District Court and the Court of Appeals cited Rothensies v.                                
            Electric Storage Battery Co., supra, failure to satisfy the                                
            single-transaction test was not clearly the basis of their                                 
            refusal to allow equitable recoupment.  Actually, it was quite                             
            proper for the Government to impose both taxes on the amount in                            
            question, and there was therefore no proper basis for                                      
            recoupment.16  Indeed, the District Court did say that Bull only                           
            allows recoupment where the imposition of two taxes rests on                               
            inconsistent theories, as opposed to inconsistent factual                                  
            determinations, Minskoff v. United States, 349 F. Supp. at 1149,                           
            and the Court of Appeals affirmed on that ground, 490 F.2d at                              
            1285.  If the opinions in Minskoff were right on this point,                               
            petitioner in the case at hand would lose, as the inconsistency                            
            in tax treatment rests on a factual issue, the value of the                                

                  16See Tierney, Equitable Recoupment Revisited:  The Scope of                         
            the Doctrine in Federal Tax Cases after United States v. Dalm, 80                          
            Ky. L.J. 95, 100 n.15 (1992).                                                              



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