Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 80

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                  Our issue here, whether the credit for prior taxes is part                           
            of the same claim for the issue of blocking equitable recoupment,                          
            is clearly less closely related to the issue of Finley v. United                           
            States, 612 F.2d 166 (5th Cir. 1980), and Estate of Hunt v.                                
            United States, 309 F.2d 146 (5th Cir. 1962) (whether the new                               
            issue is part of the same claim for the purpose of preventing the                          
            plaintiff taxpayer from separately litigating the new issue) than                          
            the issue of Hemmings v. Commissioner, supra (whether the new                              
            issue is part of the same claim for the purpose of preventing the                          
            defendant Government from separately raising the new issue                                 
            through a statutory notice and then continuing to litigate it in                           
            the Tax Court).  Hemmings v. Commissioner, supra, being closer to                          
            our case, furnishes ground for confining recoupment to the same                            
            transaction and not impeding it with the overpayment arising from                          
            allowance of the credit for taxes on prior transfers, a                                    
            completely unrelated issue.                                                                
                  The language of Bull v. United States, supra, quoted by the                          
            majority suggests that for our equitable recoupment issue we                               
            should look to Hemmings v. Commissioner, supra, not to Finley and                          
            Hunt:  Defenses that the taxpayer could have asserted if the                               
            Government had brought suit for the tax are to be allowed                                  
            taxpayers in suits that they bring.  Bull v. United States, 295                            
            U.S. at 263.  If the United States had sued petitioner in this                             
            case for the estate tax deficiency, the estate wouldn't have had                           
            to raise the credit for prior taxes as a defense or counterclaim.                          




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