Estate of Frank A. Branson - Page 19




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          to the income tax, the Supreme Court stated:                                
               This is because recoupment is in the nature of a                       
               defense arising out of some feature of the transaction                 
               upon which the plaintiff's action is grounded.  Such a                 
               defense is never barred by the statute of limitations                  
               so long as the main action itself is timely.  [Id. at                  
               262.]                                                                  
               Although the "single transaction" requirement was mentioned            
          in Bull v. United States, supra, it was the stated ground for               
          decision in Rothensies v. Electric Storage Battery Co., supra.              
          In that case, the taxpayer erroneously paid excise taxes on the             
          sale of electric storage batteries from April 1919 to April 1926.           
          In July 1926, the taxpayer filed a claim for refund for the                 
          periods of mid-1922 to 1926, the years not barred by the statute            
          of limitations, and received a refund in 1935.  Although the                
          taxpayer had been deducting the payment of these taxes, it did              
          not include the refund in income.  The Government determined a              
          deficiency in the taxpayer's 1935 income tax, and the taxpayer              
          paid the deficiency and sued for refund when its claim was                  
          denied.                                                                     
               In both the trial court and the Court of Appeals for the               
          Third Circuit, the taxpayer asserted successfully that the income           
          tax for 1935 should be reduced by equitable recoupment for the              
          time-barred excise tax overpayments for the 1919 through mid-1922           
          years.  In affirming the District Court, the Court of Appeals for           
          the Third Circuit stated that the same transaction element should           






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