- 75 - relies means no more than that equitable recoupment is only available against a deficiency determined by respondent, whether or not it turns out to exceed any recoupment sought.29 The foundations, such as they are, of the majority opinion lie in its footnotes 13 and 14. Footnote 13 provides the majority's rationale for refusing to decide whether petitioner is in a deficiency posture and thus to refuse to apply recoupment before taking into account the credit for tax on prior transfers. Footnote 14 asserts a policy reason for this refusal. The cases cited in footnote 1330 can be made to stand for the proposition that, for purposes of res judicata with respect to whether a taxpayer in a new action can raise new tax issues 29In any event, the language of Brigham v. United States, supra, on which respondent rely is dictum. The taxpayers in the cases consolidated in Brigham were seeking to use equitable recoupment (as well as mitigation) to recover time-barred income tax overpaid. The Court of Claims, having denied mitigation, went on to deny equitable recoupment, first on the ground that mitigation preempted equitable recoupment within its area of applicability. It then went on to observe that the taxpayers were not seeking to reduce deficiencies in later years, which it was conceded did not exist, but rather to extend equitable recoupment to a refund of taxes in an otherwise barred year. There was no independent basis for jurisdiction. The language is best taken as a somewhat less clear expression of the doctrine expressed much more clearly in United States v. Dalm, supra. The same is true of similar language in Evans Trust v. United States, 199, Ct. Cl. 98, 462 F.2d 521, 526 (1972), quoted by the majority (majority op. p. 16), which is to be properly interpreted in the same way as the language of Brigham. 30Commissioner v. Sunnen, 333 U.S. 591, 598 (1948); Finley v. United States, 612 F.2d 166, 170 (5th Cir. 1980); Estate of Hunt v. United States, 309 F.2d 146, 148 (5th Cir. 1962); Huddleston v. Commissioner, 100 T.C. 17, 25 (1993).Page: Previous 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 Next
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