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stock. However, the Minskoff courts are unpersuasive in
distinguishing Bull on this fact-law distinction: The issue of
whether the amounts in Bull were income or part of the gross
estate was a mixed question of fact and law. Similarly, the
issue in Dalm was the factual one of whether the payments had
been gifts or income for services,17 and everything indicates
that, had it not been for the lack of an independent basis for
jurisdiction, Mrs. Dalm would have won her suit.18 No other
decision decides whether or not to apply equitable recoupment on
the basis of this distinction. I conclude that the Minskoff case
does not clearly use failure to satisfy the single-transaction
requirement to justify its refusal to apply equitable recoupment,
is wrong in its fact-law distinction, and is in any event clearly
distinguishable from our case.19
17See Commissioner v. Duberstein, 363 U.S. 278, 289-290
(1960).
18In United States v. Dalm, 867 F.2d 305 (6th Cir. 1989),
revd. 494 U.S. 596 (1990), the Sixth Circuit found all the
requirements for equitable recoupment to be met except for the
one, different factual issue of whether the Tax Court settlement
already took account of the overpaid gift tax and remanded to the
District Court to determine that issue. In reversing on the
jurisdictional issue, the majority of the Supreme Court expressed
no misgivings about the factual basis of the inconsistent tax
treatment and indeed suggested that, had it not been for the
jurisdictional issue, Mrs. Dalm could have had her refund: “Our
holding today does not leave taxpayers in Dalm’s position
powerless to invoke the doctrine of equitable recoupment.”
United States v. Dalm, 494 U.S. at 610.
19The District Court in Minskoff v. United States, 349 F.
Supp. 1146 (S.D.N.Y. 1972), affd. per curiam 490 F.2d 1283 (2d
Cir. 1974), advanced alternative grounds for its correct result,
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