- 54 -
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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