- 60 -
within 67 days of each other.22 In addition, the dicta of the
Court of Appeals in O’Brien (and the decision of the District
Court in that case) find the single-transaction requirement
satisfied in a situation that is still closer to the case at hand
than the Herring-Bowcut situation.
Finally, in Mueller II, we decided, having been prompted to
do so by United States v. Dalm, supra, that we are authorized to
apply equitable recoupment. Dalm wrought a change in the legal
landscape that not only led us to change our own view of our
authority, but did so in a way that undercuts the broad rationale
of the narrow interpretation of the single-transaction
requirement urged in Rothensies v. Electric Storage Battery Co.,
supra. In deciding that case, the Supreme Court stated
emphatically that an important reason for keeping equitable
recoupment narrowly confined was its fear that otherwise too many
tax cases would be diverted from the Tax Court to the District
Courts. In Rothensies v. Electric Storage Battery Co., supra,
the Supreme Court also expressed concern that allowing, through
broadly interpreted equitable recoupment, wholesale reexamination
of other years would undermine the whole single-year income tax
system. In view of the limitations imposed by my view of the
requirements for equitable recoupment, including the single-
transaction requirement, the Supreme Court’s expression of
22Cf. Willis, Some Limits of Equitable Recoupment, Tax
Mitigation, and Res Judicata: Reflections Prompted by Chertkof
v. United States, 38 Tax Law. at 640-641.
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