Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 56

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                  The Court of Claims view was applied under somewhat                                  
            different circumstances in Estate of Mann v. United States, 552                            
            F. Supp. 1132 (N.D. Tex. 1982), affd. 731 F.2d 267 (5th Cir.                               
            1984), a case cited by neither party.  There, after a holding                              
            that a decedent’s estate was entitled to an income tax refund on                           
            the ground that a bad debt had been a business debt, the                                   
            Government’s equitable recoupment claim, based on the ground that                          
            the estate should have paid estate tax on the refund claim, was                            
            denied.  As the District Court observed, because refund suits                              

                  19(...continued)                                                                     
            and one of these may have been correct.  The first and arguably                            
            correct one of these alternative grounds was that the estate had                           
            not proved that there was any factual inconsistency, still less                            
            its actual amount.  Id. at 1150.  The Court of Appeals, although                           
            it felt no need to decide the case on any but the first ground                             
            (fact as opposed to law), approved the District Court’s reasoning                          
            about the estate’s failure of proof in a footnote, Minskoff v.                             
            United States, 490 F.2d at 1285 n.1, and on this basis                                     
            distinguished Boyle v. United States, 355 F.2d 233 (3d Cir.                                
            1965), where the sum at issue could not have been earned both                              
            before and after the death of the decedent.  (The District Court                           
            had felt that Boyle was inconsistent with Rothensies v. Electric                           
            Storage Battery Co., 329 U.S. 296 (1946), and had therefore                                
            refused to follow Boyle v. United States, supra.  Minskoff v.                              
            United States, 349 F. Supp. at 1150 n.3.)  With respect to this                            
            issue of proof, our case resembles Boyle, rather than Minskoff:                            
            Different valuations of a stock at the same time are inconsistent                          
            on their face, and there is no need for petitioner to prove                                
            anything on this score.                                                                    
                  The District Court’s other alternative ground was that                               
            equities weren't on the side of the taxpayer, who had failed to                            
            report as income capital gain that clearly should have been                                
            reported, and that therefore the doctrine of equitable                                     
            recoupment, being in the nature of an equitable defense, could                             
            not be invoked by a party lacking clean hands.  Id. at 1150.  As                           
            we shall see infra pp. 68-69, this is an aberrant view that                                
            courts generally don't follow, which may no longer be                                      
            respondent's view, and which is incorrect.  The Court of Appeals                           
            was silent on this issue in Minskoff.                                                      



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