Estate of Frank A. Branson - Page 5




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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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