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concern is not reasonably implicated. My approach is merely
lenient enough to admit the Herring-Bowcut situation and this
case. In Rothensies v. Electric Storage Battery Co., supra, the
taxpayer was trying to resurrect claims that were 20 years old,
whereas in our case only 67 days within the same calendar year
separate the two taxable events. Cf. O’Brien v. United States,
766 F.2d at 1051 n.17 (much to be said for liberally construing
single-transaction and identity-of-interest requirements for
equitable recoupment, but not for relaxing rule against reopening
closed tax years); Aetna Cas. & Sur. Co. v. Tax Appeals, 633
N.Y.S.2d 226, 228 (N.Y. App. Div. 1995) (equitable recoupment
allowed so long as taxpayer’s counterclaim covers same tax period
as Government’s claim, so that overpayment can be considered part
of same “transaction”, (citing National Cash Register Co. v.
Joseph, 86 N.E.2d 561, 562 (N.Y. 1949))).
According to Brown v. Secretary of Army, 78 F.3d 645, 650
(D.C. Cir. 1996), the rationale for narrow interpretation of
waivers of sovereign immunity is the risk of imposing
unanticipated and potentially excessive liabilities on the fisc.
The liability imposed on the fisc by interpreting the single-
transaction requirement in the way I would do here is strictly
limited and can't be regarded as excessive.
I would therefore hold, in the circumstances of this case,
where not only has the same fund been subjected to inconsistent
double taxation by reason of the decedent's death, but the
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