Estate of Frank A. Branson - Page 25




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          for reopening years closed by the statute of limitations.  See              
          O'Brien v. United States, 766 F.2d at 1049.                                 
               The Court of Appeals for the Seventh Circuit noted, however,           
          that the single-transaction test had been met.  The court stated:           
                    The "single transaction test," requiring that a                   
               "single transaction or taxable event ha[s] been                        
               subjected to two taxes on inconsistent theories,"                      
               Rothensies, 329 U.S. at 300, 67 S.Ct. at 272, also                     
               appears to be satisfied on these facts if we adopt the                 
               reasoning of the Third Circuit in Boyle.  The Boyle                    
               court ruled that the "single transaction test" was                     
               satisfied where undeclared dividends were erroneously                  
               treated as assets, included as part of the corpus of                   
               decedent's estate and subjected to estate tax, but                     
               later were ruled taxable income upon distribution to                   
               the beneficiaries.  The net effect, the court noted,                   
               was inconsistent treatment of the same fund directly                   
               resulting in an overpayment of tax by the estate.                      
               Essentially the same situation exists here where                       
               inconsistent tax treatment of the same stock (in terms                 
               of valuation) has directly resulted in the overpayment                 
               of tax by the beneficiaries.  [O'Brien v. United                       
               States, supra at 1050-1051 n.16]                                       

               Petitioner also relies upon Estate of Vitt v. United States,           
          706 F.2d 871 (8th Cir. 1983), to support its position that double           
          taxation of the same fund under inconsistent theories satisfies             
          the single-transaction requirement.14  In Estate of Vitt v.                 


               14The Court of Appeals for the Eighth Circuit cited Estate             
          of Vitt v. United States, 706 F.2d 871 (8th Cir. 1983), in a                
          recently decided case, Coohey v. United States, 172 F.3d 1060,              
          (8th Cir. 1999).  In Coohey v. United States, supra, the court              
          found that, under the facts of that case, an AMT refund, based              
          upon repeal of a statute, for one year and the allowance of an              
          AMT credit for the following year "are clearly a single                     
          transaction", because without the assessment and payment of the             
          AMT for the earlier year, there would never have been an AMT                
                                                             (continued...)           




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