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"Married filing joint return", on or about April 15, 1993, and
paid the tax due. March reported the $610,274 gain on line 13 of
Schedule D, which was attached to the Form 1040, as "Net long-
term gain or (loss) from partnerships, S corporations, and
fiduciaries".
Respondent determined a deficiency in petitioner's estate
tax liability on the grounds that the fair market values of the
Savings and Willits shares on the date of death were $300 and
$850, respectively, per share. In Branson I, we found that the
date-of-death fair market values of the Savings and Willits
shares were $276 and $626, respectively. Petitioner asserts that
it is entitled to equitable recoupment of the income tax overpaid
by March, the refund of which is barred by the statute of
limitations, in determining the amount of its Federal estate tax
liability.
Discussion
Relying upon Estate of Mueller v. Commissioner, 153 F.3d 302
(6th Cir. 1998), respondent asserts that this Court lacks
jurisdiction to consider petitioner's claim for equitable
recoupment. In Estate of Mueller v. Commissioner, 101 T.C. 551
(1993) (Mueller II), we opined that we have jurisdiction to
consider claims of equitable recoupment. In Estate of Mueller v.
Commissioner, 107 T.C. 189 (1996) (Mueller III), we held that
equitable recoupment is restricted to use as a defense against an
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