- 72 - section 6512(b)(1) incorporates, have been satisfied so as to allow the refund of the overpayment in this case. Because the statutory notice in this case was mailed within 3 years of the Administration Trust's overpayments of both income tax and estate tax, section 6512(b)(3)(B) has been satisfied. ii. Recoupment's defensive nature and the unrelated overpayment don't bar recoupment Respondent argues and the majority conclude that petitioner’s overpayment status prevents us from applying equitable recoupment. They've been beguiled by the notion that allowing equitable recoupment when there's already a net overpayment would increase the overpayment, and that this would be the same as allowing an affirmative recovery of time-barred taxes that recoupment can't provide. As we've said, Mueller II, 101 T.C. at 552, and as United States v. Dalm, 494 U.S. 596 (1990), clearly establishes, a taxpayer asserting equitable recoupment may not affirmatively collect the time-barred overpayment of tax, but may only use equitable recoupment to reduce the Government’s timely determination of a deficiency. Respondent and the majority (majority op. p. 8) cite for their conclusion Brigham v. United States, 200 Ct. Cl. 68, 470 F.2d 571 (1972). There, the taxpayers were seeking refunds of ordinary income tax paid in barred years that, it turned out under a later Supreme Court case, had been erroneously paid, because the underlying transaction should have been treated as anPage: Previous 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 Next
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