Estate of Frank A. Branson - Page 36




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          standards of the Supreme Court, * * * the teaching of Rothensies            
          is that [the doctrine of equitable recoupment] is not a flexible            
          doctrine, but a doctrine strictly limited, and limited for good             
          reason."  Ford v. United States, 276 F.2d at 23.  The Court of              
          Claims did not cite United States v. Herring, supra, and United             
          States v. Bowcut, 287 F.2d 654 (9th Cir. 1961), and Rev. Rul. 71-           
          56, supra, had not yet been issued.                                         
               The "good reason" referred to in Ford v. United States,                
          supra, is the avoidance of the kind of staleness that the Supreme           
          Court feared in Rothensies v. Electric Storage Battery Co.,                 
          supra.                                                                      
               That concern does not apply in the case at hand.  An                   
          automatic feature arising from the statutory relationship between           
          the estate tax and the income tax is that once the value of the             
          item included in the gross estate is finally determined, there is           
          little or no factual issue with respect to the time-barred claim;           
          hence there is no genuine issue of staleness.  Furthermore, as              
          the value improperly excluded from (or included in) the gross               
          estate automatically is the same amount erroneously included in             
          (or excluded from) gross income, neither the Commissioner nor the           
          taxpayer is required to perform extensive additional                        
          recordkeeping or investigation with respect to the time-barred              
          claim.  Finally, unlike the overpaid excise taxes in Rothensies             
          v. Electric Storage Battery Co., supra, which had been collected            





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