- 69 -
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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