- 47 -
realization of excess income, and the payment of excess income
tax. Therefore, unlike the taxpayer in Rothensies v. Electric
Storage Battery Co., supra, and the Government in Parker v.
United States, supra, petitioner is not attempting to lump
distinct transactions separated by many years into a single
taxable event.20
Any appeal in this case would lie to the Court of Appeals
for the Ninth Circuit, and we are bound by any decision of that
court squarely in point. See Golsen v. Commissioner, 54 T.C. at
756-757. However, the Court of Appeals did not consider the
precise issue now before us, and both Estate of Harrah v. United
States, 77 F.3d 1122 (9th Cir. 1995), and Parker v. United
States, 110 F.3d 678 (9th Cir. 1997), are otherwise
distinguishable on their facts; Golsen does not apply. See id.
Here, there is more than a mere logical relationship or
factual and arithmetical link between the tax paid on the gain
realized on the shares sold by petitioner and the valuation of
those same shares for the estate tax. Because of the statutory
20When the taxpayer in Rothensies v. Electric Storage
Battery Co., 329 U.S. 296 (1946), brought suit in 1943, the claim
pleaded as recoupment was for taxes collected over 20 years
before and barred by statute for over 16 years. See id. at 302-
303. Similarly, in Parker v. United States, 110 F.3d 678 (9th
Cir. 1997), the settlement trust was created in 1975, 4 years
after the mother's death, and it was a decade later before the
Government "roused to action" when the sisters sought the refund
to which they were entitled. See id. at 685. In the instant
case, the stock was sold by petitioner in the year immediately
following decedent's death.
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