Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 83

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            be unjust to allow one party to benefit from some aspects of a                             
            transaction when another party can't derive the benefits of other                          
            aspects of that same transaction merely because of the presence                            
            of some procedural bar.  Reiter v. Cooper, 507 U.S. 258, 265 n.2                           
            (1993); Rothensies v. Electric Storage Battery Co., 329 U.S. at                            
            299; In re Peterson Distrib., Inc., 82 F.3d 956, 961 (10th Cir.                            
            1996); In re B & L Oil Co., 782 F.2d 155, 159 (10th Cir. 1986)                             
            (cited approvingly for extent to which recoupment is available in                          
            bankruptcy in Reiter v. Cooper, 507 U.S. at 265 n.2 ); In re                               
            Centergas, Inc., 172 Bankr. 844, 849 (Bankr. N.D. Tex. 1994).  To                          
            the extent that the object of inconsistent taxation was not a                              
            part of the same transaction, to that extent justice requires                              
            less insistently that it be treated consistently, and this is                              
            what explains the single-transaction requirement.  There is no                             
            such connection between the rationale of equitable recoupment and                          
            the majority's expansive interpretation of the requirement that                            
            recoupment be defensive.  Rather, the majority's reasoning                                 
            prevents justice from being rendered in view of the one                                    
            transaction as a whole and thereby thwarts the purpose of                                  
            equitable recoupment, not only in this case but probably in                                
            future cases where such a result would be even more clearly                                
            unjust.                                                                                    









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