Estate of Frank A. Branson - Page 17




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          determined a deficiency in the estate's income tax on the correct           
          theory that the same sum was income to the estate.  The executor            
          paid the income tax in 1928.  Later, in that same year, the                 
          executor filed a claim for refund for the income tax paid and               
          sued for refund after the claim was denied.                                 
               In considering the issue before it, the Supreme Court                  
          stated:                                                                     
               A serious and difficult issue is raised by the claim                   
               that the same receipt has been made on the basis of                    
               both income and estate tax, although the item cannot in                
               the circumstances be both income and corpus; and that                  
               the alternative prayer of the petition required the                    
               court to render a judgment which would redress the                     
               illegality and injustice resulting from the erroneous                  
               inclusion of the sum in the gross estate for estate                    
               tax. * * *  [Bull v. United States, 295 U.S. at 255;                   
               emphasis added.]                                                       
               The Supreme Court found that the estate's receipt of the sum           
          was properly taxable as income to the estate and that under the             
          facts of the case, "the item could not be both corpus and income            
          of the estate."  See Bull v. United States, supra at 258.                   
               Thus, the Supreme Court viewed the sum of money owed to                
          Bull's estate as an item.  See id. at 255.  We have no reason to            
          believe that the same sum may be defined as an item for income              
          tax purposes but be defined as something other than an item when            
          included in corpus for purposes of calculating the estate tax.              
          See id. at 256.  In the case at hand, the same item (in terms of            








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