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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).
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