Estate of Frank A. Branson - Page 9




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          Moreover, in deciding cases over which we have jurisdiction "we             
          have applied the equity-based principles of waiver, duty of                 
          consistency, estoppel, substantial compliance, abuse of                     
          discretion, laches, and the tax benefit rule."  See Woods v.                
          Commissioner, 92 T.C. 776, 784 (1989); fn. refs. omitted.  Thus,            
          this Court should be properly viewed as exercising full judicial            
          power within its limited subject matter jurisdiction.4                      
               Furthermore, in United States v. Dalm, 494 U.S. 596, 611 n.8           
          (1990), the Supreme Court noted:  "We have no occasion to pass              
          upon the question whether Dalm could have raised a recoupment               
          claim in the Tax Court."  See also id. at 615 n.3 (Stevens, J.,             
          dissenting) (commending the majority's reservation of the                   
          question whether the Tax Court has authority to consider                    
          recoupment).  Thus, although the Supreme Court agreed that the              
          Board of Tax Appeals could not consider equitable recoupment, we            
          believe that the Supreme Court has left this issue open with                
          respect to the Tax Court as presently constituted.  Commissioner            
          v. Gooch Milling & Elevator Co., and its progeny, therefore, do             
          not control the outcome of this case.                                       



               3(...continued)                                                        
          Court operates pretty indistinguishably from a federal district             
          court.").                                                                   
               4See Saltzman, IRS Practice and Procedure, par. 5.06[1], at            
          S5-20 (2d ed. 1991); Willis, "Equitable Recoupment:  More                   
          Pitfalls for the Unwary", Tax Notes 361 (Oct. 19, 1998).                    




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