Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 58

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            Herring-Bowcut, both the main action and the recoupment claim                              
            are occasioned solely by deficiencies, whereas here that                                   
            characterization was available only for the proceeding before us                           
            prior to issuance of our opinion in Mueller I.  However, here                              
            both the proceeding before us and the recoupment claim are                                 
            occasioned solely by inconsistent valuations of the same shares                            
            of stock.  There may not be a single taxable event here, but that                          
            is really true in Herring-Bowcut as well.  One can also speak of                           
            our situation as a single transaction, decedent’s death, which                             
            occasions the need to value the shares, both to determine the                              
            gross estate for estate tax purposes and the step-up in basis for                          
            income tax purposes.  There is, moreover, the same fund, which                             
            can be considered the same item.  Cf. Estate of Vitt v. United                             
            States, 706 F.2d 871, 875 (8th Cir. 1983) (taxation of same tract                          
            of property and inclusion of identical part of value of that                               
            property in two instances of imposition of estate tax sufficient                           
            to satisfy single-transaction requirement); United States v. Gulf                          
            Oil Corp., 485 F.2d 331, 333 (3d Cir. 1973) (taxation of same                              
            fund all that is required); Boyle v. United States, 355 F.2d at                            
            236 (taxation of identical “definite fund” all that is required).                          
                  This differences between the situation in Rothensies v.                              
            Electric Storage Battery Co., on the one hand, and the Herring-                            
            Bowcut-Wilmington Trust Co.-Bartels and the Ford-O'Brien-Mueller                           
            situations, on the other, and the similarities of the latter two                           
            sets of situations, are striking.  In Rothensies v. Electric                               




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