Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 75

                                               - 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

Last modified: May 25, 2011