Estate of Frank A. Branson - Page 21




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          through 1926 in the taxpayer's 1935 income had no logical                   
          connection.  The erroneous failure to include the excise tax                
          refund in income for 1935 is not the same transaction as                    
          erroneously paying excise taxes in 1919 through mid-1922.                   
          Furthermore, there was no transactional nexus between the time-             
          barred excise taxes paid in 1919 through mid-1922 and the                   
          refunded excise taxes paid in 1922 through 1926, which the                  
          taxpayer was required to include in income in 1935.                         
               The Supreme Court has not decided a case based on the                  
          single-transaction requirement since Rothensies v. Electric                 
          Storage Battery Co., supra.  In a recent case, United States v.             
          Dalm, 494 U.S. 596 (1990), the Court held that equitable                    
          recoupment could only be used defensively, and the Court stated             
          that since Bull v. United States, 295 U.S. 247 (1935), it has               
          emphasized "that a claim of equitable recoupment will lie only              
          where the Government has taxed a single transaction, item, or               
          taxable event under two inconsistent theories."  United States v.           
          Dalm, supra at 605 n.5.                                                     
               Consequently, the interpretation and application of the                
          single-transaction requirement has been left to the lower courts,           
          which has resulted in conflicting authority.                                
               The cases on which petitioner mainly relies are Boyle v.               
          United States, 355 F.2d 233 (3d Cir. 1965), revg. and remanding             
          per curiam 232 F. Supp. 543 (D.N.J. 1964); O'Brien v. United                





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