Estate of Frank A. Branson - Page 15




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          Requirements of Equitable Recoupment                                        
               In a recent case, the Supreme Court reaffirmed that a party            
          litigating a tax claim in a timely proceeding may, in that                  
          proceeding, seek recoupment of a related, and inconsistent, but             
          now time-barred tax claim relating to the same transaction.  See            
          United States v. Dalm, supra at 608 (interpreting Bull v. United            
          States, 295 U.S. 247 (1935), and Stone v. White, 301 U.S. 532               
          (1937)).                                                                    
               A claim of equitable recoupment requires:  (1) That the                
          refund or deficiency for which recoupment is sought by way of               
          offset be barred by time; (2) that the time-barred offset arise             
          out of the same transaction, item, or taxable event as the                  
          overpayment or deficiency before the Court; (3) that the                    
          transaction, item, or taxable event have been inconsistently                
          subjected to two taxes; and (4) that if the subject transaction,            
          item, or taxable event involves two or more taxpayers, there be             
          sufficient identity of interest between the taxpayers subject to            
          the two taxes so that the taxpayers should be treated as one.               
          See United States v. Dalm, supra at 604-605 & n.5; Coohey v.                
          United States, 172 F.3d 1060 (8th Cir. 1999); Parker v. United              
          States, 110 F.3d 678, 682-683 (9th Cir. 1997).                              
               Each of these requirements is met in the instant case.                 








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