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recoupment. Putting aside questions of the Court’s jurisdiction
to apply equitable recoupment, see Estate of Mueller v.
Commissioner, __ F.3d __ (6th Cir., Aug. 20, 1998), affg. 107
T.C. 189 (1996), it is not available in these circumstances.
Equitable recoupment may apply in certain circumstances to
overcome the bar of the statute of limitations. “[A] claim of
equitable recoupment will lie only where the Government has taxed
a single transaction, item, or taxable event under two
inconsistent theories.” United States v. Dalm, 494 U.S. 596, 605
n.5 (1990). Here, there are no inconsistent theories of taxation
involved. If an NOL is claimed in the wrong year, it is not
allowable, and that is respondent’s consistent position.
Therefore there is no basis for petitioner’s equitable recoupment
claim.
To reflect the foregoing,
Decision will be entered
for respondent.
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Last modified: May 25, 2011