Estate of Frank A. Branson - Page 41




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          taxes as an assertion of equitable recoupment in respect to the             
          open 1980 tax year must fail because consideration of the 1983              
          and 1984 years was barred by the statute of limitations, and the            
          1983 and 1984 sales of the Holiday Inns stock transactions were             
          distinct from the Harrah/Holiday Inns merger transactions                   
          occurring in 1980.  Although the Court of Appeals found "a common           
          thread of factual similarity" linking the 1983 and 1984                     
          transactions with the 1980 transactions, it was not enough to               
          provide jurisdiction.  See id. at 1126.                                     
               In Estate of Harrah v. United States, 77 F.3d 1122 (9th Cir.           
          1997), the Court of Appeals for the Ninth Circuit did not decide            
          the issue now before us; the value of the stock in Harrah had               
          been stipulated, and when the District Court determined the value           
          of the convertible debentures, it consequently determined the               
          amount of gain from the sale of that stock.  Unlike the stock at            
          issue in this case, the convertible subordinated debentures were            
          not items included in the estate for estate tax purposes.                   
          Furthermore, as the taxpayer's 1980 claim for refund of the                 
          overpayment of income tax realized in that sale was not time                
          barred, the court did not have to consider the issue of whether             
          the estate could recoup the excess income tax paid as a credit              
          against the underpaid estate tax.  In short, the issue now before           
          us is the issue that was not before the Court of Appeals.                   







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