- 97 -
argument, 507 U.S. at 265. It also used several recoupment cases
outside both bankruptcy and tax to support the proposition that
there is a "general principle of recoupment", which has force in
the absence of explicit Congressional prohibition, id.; cf.
United States v. Dewey Freight Sys., Inc., 31 F.3d 620, 623 (8th
Cir. 1994). Standard jurisdictional principles typically operate
in the same fashion in tax as in all other areas of the law.
United States v. Forma, 42 F.3d at 766 (citing United States v.
Dalm, 494 U.S. at 608-611).
So long as the recoupment claim is only allowed to offset
the Government’s claim from the transaction in issue, and not to
exceed any amount determined to be owing to the Government that
also arises from that transaction, all sensible requirements are
met. The statement of the Court of Appeals for the Second
Circuit in a tax case that, despite sovereign immunity, a
defendant may, without statutory authority, recoup on a
counterclaim an amount equal to the principal claim, United
States v. Forma, 42 F.3d at 764 (citing United States v. United
States Fidelity & Guaranty Co., 309 U.S. 506, 511 (1940)),
supports my view.41
41United States v. Forma, 42 F.3d 759, 767-768 & n. 11 (2d
Cir. 1994), did not involve equitable recoupment, although that
doctrine is discussed briefly. Rather, it involved an unrelated
time-barred counterclaim by taxpayers in a suit where the United
States originally sought to reduce tax assessments relating to
(continued...)
Page: Previous 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 NextLast modified: May 25, 2011