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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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