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The Court of Appeals further relied upon Commissioner v.
Gooch Milling & Elevator Co., 320 U.S. 418 (1943), and several
cases decided in Federal courts which have cited Gooch Milling,2
for the proposition that this Court does not have jurisdiction to
consider the affirmative defense of equitable recoupment.
The jurisdictional status of equitable recoupment in this
Court has had a long history, which we reviewed with painstaking
care in Estate of Bartels v. Commissioner, 106 T.C. 430 (1996)
and in Mueller II. We do not here reiterate that history, except
to distinguish our position from that of the Court of Appeals for
the Sixth Circuit.
In Mueller II, we interpreted Commissioner v. Gooch Milling
& Elevator Co., supra, as presenting the question whether the
Board of Tax Appeals had authority to apply the doctrine of
equitable recoupment in income tax cases. We concluded that
Gooch Milling does not prevent this Court from "considering the
affirmative defense of equitable recoupment when it is properly
raised in a timely suit for redetermination of a tax deficiency
over which we have jurisdiction." See Mueller II, 101 T.C. at
560.
2See Rothensies v. Electric Storage Battery Co., 329 U.S.
296, 303 (1946); Elbert v. Johnson, 164 F.2d 421, 424 (2d Cir.
1947); Mohawk Petroleum Co. v. Commissioner, 148 F.2d 957, 959
(9th Cir. 1945), affg. 47 B.T.A. 952 (1942); Estate of Van Winkle
v. Commissioner, 51 T.C. 994, 999 (1969); Wiener Mach. Co. v.
Commissioner, 16 T.C. 48, 54 (1951).
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