Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 74

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            Court’s jurisdiction to apply equitable recoupment would                                   
            evaporate if and when it turned out that the petitioner was in an                          
            overpayment status, which might well not be known until we were                            
            about to enter a decision after a Rule 155 computation in a                                
            multi-issue case.  To tie the requirement that the assertion of                            
            equitable recoupment be defensive to a taxpayer’s total position,                          
            rather than to the single transaction to which equitable                                   
            recoupment would attach, would be a radical departure from the                             
            history of recoupment.  Recoupment arose as an equitable rule of                           
            joinder that permitted adjudication in one suit of two claims,                             
            both arising out of the same transaction, that otherwise had to                            
            be brought separately under the common law forms of action.  In                            
            re Davidovich, 901 F.2d 1533, 1537 (10th Cir. 1990).  Hence, when                          
            recoupment was imported into the tax law by the Supreme Court in                           
            Bull v. United States, 295 U.S. 247 (1935), the Court did require                          
            that both claims arise out of the same transaction and that the                            
            recoupment claim be defensive, but it did not require that the                             
            taxpayer have a deficiency.  Bull v. United States, 295 U.S. at                            
            262.  Indeed, the Court could not have done so; in Bull v. United                          
            States, supra, as in all later refund cases where taxpayers                                
            obtained equitable recoupment, the taxpayers had overpaid.  The                            
            fact that the amount that they claimed in recoupment did not                               
            exceed the amount claimed by the Government from the same                                  
            transaction sufficed to render their claim defensive.  The                                 
            language in Brigham v. United States, supra, on which respondent                           




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