Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 69

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            into account in determining the availability of recoupment moots                           
            the specifics of respondent’s charges.  Because I would agree                              
            with petitioner that respondent’s concession settles the issue,                            
            it's unnecessary to address respondent’s charges.26  I would                               
            therefore decide that neither of these considerations prevents                             
            the application of equitable recoupment in petitioner's favor.                             
            7.  Overpayment Status                                                                     
                  Petitioner's overpayment status is attributable to two                               
            functionally unrelated factors:  respondent's uncontested                                  
            allowance of credit for tax on prior transfers under section                               
            2013, and our redetermination of the value of the shares in an                             
            amount which, although greater than the value reported on the                              
            estate tax return, is substantially less than the value                                    
            determined in respondent's statutory notice.                                               
                  If petitioner had filed the estate tax return claiming the                           
            previously taxed property credit to which it is clearly entitled,                          


                  26There is substantial authority that equitable factors                              
            can't block equitable recoupment, Bull v. United States, 295 U.S.                          
            247 (1935); Fisher v. United States, 80 F.3d 1576, 1581 (Fed.                              
            Cir. 1996); Lovett v. United States, 81 F.3d 143, 145 (Fed. Cir.                           
            1996); United States v. Bowcut, 287 F.2d at 656-657; Dysart v.                             
            United States, 169 Ct. Cl. 276, 340 F.2d 624, 628-630 (1965);                              
            Holzer v. United States, 250 F. Supp. 875, 878 (E.D. Wis. 1966),                           
            affd. per curiam 367 F.2d 822 (7th Cir. 1966); see also                                    
            McConnell, The Doctrine of Recoupment in Federal Taxation, 28 Va.                          
            L. Rev. 577, 579 (1942) (recoupment not entirely equitable in                              
            origin or nature).  But see Fairley v. United States, 901 F.2d                             
            691, 694 n.4 (8th Cir. 1990); Wilmington Trust Co. v. United                               
            States, 610 F.2d at 714-715; Davis v. United States, 40 AFTR 2d                            
            77-6189, at 77-6192, 77-1 USTC par. 13,195, at 87,274 (N.D. Tex.                           
            1977); Minskoff v. United States, 349 F. Supp. at 1150.                                    




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