Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 72

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            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 an                          





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