Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 85

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                  The question is really one of the order of application:  If                          
            we consider the adjustment that would result from recoupment as                            
            occurring before the allowance of credit for tax on prior                                  
            transfers, then that adjustment doesn't cause affirmative                                  
            recovery, which would only result later; rather, it merely                                 
            cancels, in part, the Government's claim arising from the same                             
            transaction, item, or event.  Only if we consider the adjustment                           
            from recoupment as occurring after the allowance of the credit                             
            for tax on prior transfers would it cause affirmative recovery.                            
            We aren't obliged to take that view of it, and the policy                                  
            considerations argue strongly against so taking it.                                        
                  So long as petitioner is entitled to some unrelated credit,                          
            however small, there would, under respondent's reasoning, be some                          
            redetermined increased valuation of the shares at which                                    
            petitioner would cease to be entitled to any more than partial                             
            recoupment, and another, lower but still increased, valuation at                           
            which petitioner would cease to be entitled to any recoupment at                           
            all.  The same would be true of any refund actions that might                              
            have occurred if the estate had paid the deficiency determined by                          
            respondent and then sued for a refund.  Under respondent's and                             
            the majority's approach, any limitation on recoupment might only                           
            become clear upon final disposition of a multi-issue case.  And                            
            this limitation on equitable recoupment would result from the                              








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