Estate of Frank A. Branson - Page 42




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               In addition to these differences, the instant case is                  
          otherwise distinguishable from Estate of Harrah v. United States,           
          supra.  In our case, petitioner is not seeking to gain                      
          jurisdiction with a time-barred claim; we have jurisdiction                 
          because respondent determined a deficiency in petitioner's estate           
          tax, issued a notice of deficiency, and petitioner filed timely a           
          petition in response thereto.  Moreover, petitioner is not                  
          attempting to reduce the income tax paid in the time-barred year;           
          it is asserting that equitable recoupment is available to reduce            
          the estate tax deficiency in the open year with the income tax on           
          the same item that earlier was erroneously overpaid.                        
               Most importantly, the 1983 and 1984 sales of the Holiday               
          Inns shares by the estate and trust were many transactional                 
          generations removed from the transfer of the Harrah's stock to              
          the estate and its sale of that stock in the merger.  Neither the           
          convertible subordinated debentures nor the Holiday Inns shares             
          were items included in the estate.  Furthermore, unlike the item            
          in Bull v. United States, supra, and the item in the instant                
          case, the Holiday Inns shares were not taxed once under the                 
          estate tax as corpus and again under the income tax as capital              
          gain.                                                                       
               Finally, unlike the case at hand, where the only act of                
          petitioner that contributed to the circumstance of double                   
          taxation was the erroneous valuation of those assets, see United            





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